Exhibit 99.5
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is an Assignment, Assumption and Recognition Agreement (this "AAR
Agreement") made as of April 1, 2006, among Xxxxxxx Xxxxx Mortgage Lending,
Inc., having an address at World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Assignor"), Xxxxxxx Xxxxx Mortgage Investors, Inc., having an
address at 4 World Financial Center, 10th Floor, New York, New York 10281 (the
"Assignee") and GreenPoint Mortgage Funding, Inc. (the "Company").
WHEREAS, Xxxxxxx Xxxxx Mortgage Holdings Inc. ("MLMH") acquired the
mortgage loans set forth on Attachment 1 annexed hereto (the "Assigned Loans")
from the Company pursuant to that certain Master Mortgage Loan Purchase and
Servicing Agreement (the "Agreement"), dated as of April 1, 2003, among MLMH,
Terwin Advisors, LLC ("Terwin") and the Company, as amended by Amendment No. 1,
dated as of August 20, 2003 among MLMH, Terwin and the Company;
WHEREAS, MLMH assigned all of its right, title and interest in, to and
under the Assigned Loans and the Agreement to Assignor pursuant to the
Assignment, Assumption and Recognition Agreement, dated April 1, 2006, among
MLMH, the Company and Assignor (the "Assignment, Assumption and Recognition
Agreement"; together with the Agreement, the "Agreements").
In consideration of the mutual promises contained herein the parties
hereto agree that the Assigned Loans shall be subject to the terms of this AAR
Agreement. Capitalized terms used herein but not defined shall have the meanings
ascribed to them in the Pooling and Servicing Agreement (as defined below).
Assignment and Assumption
1. Assignor hereby grants, sells, transfers and assigns to Assignee all of
the right, title and interest of Assignor in the Assigned Loans and, as they
relate to the Assigned Loans, all of its right, title and interest in, to and
under the Agreements. Assignor specifically reserves and does not assign to
Assignee any right, title and interest in, to or under any Mortgage Loans
subject to the Agreements other than those set forth on Attachment l.
Notwithstanding anything to the contrary contained herein, the Assignor
specifically reserves and does not assign to the Assignee any right, title and
interest in, to or under the representations and warranties contained in Section
7.01 and Section 7.02 of the Agreement and the Assignor is retaining the right
to enforce the representations and warranties set forth in those sections
against the Company. In addition, the Assignor specifically reserves and does
not assign to the Assignee any right, title and interest in, to or under Section
7.04 of the Agreement.
Representations, Warranties and Covenants
2. Assignor warrants and represents to, and covenants with, Assignee and
Company that as of the date hereof:
a. Attached hereto as Attachment 2 are true and accurate copies of the
Agreements, which agreements are in full force and effect as of the date
hereof and the respective provisions of which have not been waived, amended
or modified in any respect, nor has any notice of termination been given
thereunder;
b. Assignor was the lawful owner of the Assigned Loans with full right
to transfer the Assigned Loans and any and all of its interests, rights and
obligations under the Agreements as it relates to the Assigned Loans, free
and clear of any and all liens, claims and encumbrances; and upon the
transfer of the Assigned Loans to Assignee as contemplated herein, Assignee
shall have good title to each and every Assigned Loan, as well as any and
all of Assignor's interests, rights and obligations under the Agreements as
it relates to the Assigned Loans, free and clear of any and all liens,
claims and encumbrances;
c. Assignor has not received notice of, and has no knowledge of, any
offsets, counterclaims or other defenses available to Company with respect
to the Assigned Loans or the Agreements;
d. Assignor has not waived or agreed to any waiver under, or agreed to
any amendment or other modifications of, the Agreements. Assignor has no
knowledge of, and has not received notice of, any waivers under or any
amendments or other modifications of, or assignment of rights or
obligations under the Agreements;
e. Assignor is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its formation, and has
all requisite power and authority to acquire, own and sell the Assigned
Loans;
f. Assignor has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary course of Assignor's
business and will not conflict with, or result in a breach of, any of the
terms, conditions or provisions of Assignor's charter or by-laws or any
legal restriction, or any material agreement or instrument to which
Assignor is now a party or by which it is bound, or result in the violation
of any law, rule, regulation, order, judgment or decree to which Assignor
or its property is subject. The execution, delivery and performance by
Assignor of this AAR Agreement and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all
necessary action on the part of Assignor. This AAR Agreement has been duly
executed and delivered by Assignor and, upon the due authorization,
execution and delivery by Assignee and Company, will constitute the valid
and legally binding obligation of Assignor enforceable against Assignor in
accordance with its terms except as enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights
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generally, and by general principles of equity regardless of whether
enforceability is considered in a proceeding in equity or at law;
g. No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is
required to be obtained or made by Assignor in connection with the
execution, delivery or performance by Assignor of this AAR Agreement, or
the consummation by it of the transactions contemplated hereby. Neither
Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Assigned Loans or any interest in the
Assigned Loans, or solicited any offer to buy or accept transfer, pledge or
other disposition of the Assigned Loans, or any interest in the Assigned
Loans, or otherwise approached or negotiated with respect to the Assigned
Loans, or any interest in the Assigned Loans, with any Person in any
manner, or made any general solicitation by means of general advertising or
in any other manner, or taken any other action which would constitute a
distribution of the Assigned Loans under the Securities Act of 1933, as
amended (the "1993 Act") or which would render the disposition of the
Assigned Loans a violation of Section 5 of the 1933 Act or require
registration pursuant thereto; and
h. Assignor has received from Company, and has delivered to Assignee,
all documents required to be delivered to Assignor by Company prior to the
date hereof pursuant to Section 6.03 of the Agreement with respect to the
Assigned Loans.
3. Assignee warrants and represents to, and covenants with, Assignor and
Company that as of the date hereof:
a. Assignee is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its formation and has
all requisite power and authority to acquire, own and purchase the Assigned
Loans;
b. Assignee has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary course of Assignee's
business and will not conflict with, or result in a breach of, any of the
terms, conditions or provisions of Assignee's charter or by-laws or any
legal restriction, or any material agreement or instrument to which
Assignee is now a party or by which it is bound, or result in the violation
of any law, rule, regulation, order, judgment or decree to which Assignee
or its property is subject. The execution, delivery and performance by
Assignee of this AAR Agreement and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all
necessary action on the part of Assignee. This AAR Agreement has been
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duly executed and delivered by Assignee and, upon the due authorization,
execution and delivery by Assignor and Company, will constitute the valid
and legally binding obligation of Assignee enforceable against Assignee 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 material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is
required to be obtained or made by Assignee in connection with the
execution, delivery or performance by Assignee of this AAR Agreement, or
the consummation by it of the transactions contemplated hereby;
d. There is no action, suit, proceeding, investigation or litigation
pending or, to Assignee's knowledge, threatened, which either in any
instance or in the aggregate, if determined adversely to Assignee, would
adversely affect Assignee's execution or delivery of, or the enforceability
of, this AAR Agreement, or Assignee's ability to perform its obligations
under this AAR Agreement;
e. Assignee understands that the Assigned Loans have not been
registered under the Securities Act of 1934 (the "Securities Act") or the
securities laws of any state;
f. Assignee is either (i) not an employee benefit plan that is subject
to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986 (the
"Code")(a "Plan") and not a Person acting, directly or indirectly, on
behalf of or investing with "plan assets" of any such Plan or (ii) an
employee benefit plan that is subject to ERISA and the assignment
contemplated herein does not constitute and will not result in non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code;
g. Assignee assumes all of the rights of the Assignor under the
Agreements with respect to the Assigned Loans including the right to
enforce the representations and warranties of the Company contained in the
Agreements; and
h. A registration statement on Form S-3 (File No. 333-130545),
including the Base Prospectus (the "Registration Statement") has been filed
with the Securities and Exchange Commission (the "Commission") and has
become effective under the Securities Act of 1933, as amended (the
"Securities Act") and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been initiated, or to the Assignee's knowledge, threatened, by the
Commission.
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4. Company warrants and represents to, and covenants with, Assignor and
Assignee that as of the date hereof:
a. Attached hereto as Attachment 2 are true and accurate copies of the
Agreements, which agreements are in full force and effect as of the date
hereof and the respective provisions of which have not been waived, amended
or modified in any respect, nor has any notice of termination been given
thereunder;
b. Company is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all
requisite power and authority to service the Assigned Loans;
c. Company has full corporate power and authority to execute, deliver
and perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary course of Company's
business and will not conflict with, or result in a breach of, any of the
terms, conditions or provisions of Company's charter or by-laws or any
legal restriction, or any material agreement or instrument to which 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 Company or its
property is subject. The execution, delivery and performance by Company of
this AAR Agreement and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary corporate
action on the part of Company. This AAR Agreement has been duly executed
and delivered by Company, and, upon the due authorization, execution and
delivery by Assignor and Assignee, will constitute the valid and legally
binding obligation of Company, enforceable against 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;
d. No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be
obtained or made by Company in connection with the execution, delivery or
performance by Company of this AAR Agreement, or the consummation by it of
the transactions contemplated hereby;
e. Company shall establish a Custodial Account (entitled "GreenPoint
Mortgage Funding, Inc., as Servicer, in trust for Xxxxx Fargo Bank, N.A. as
Securities Administrator for Xxxxxxx Xxxxx Mortgage Investors Trust MLMI
Series 2006-A2 Mortgage Pass-Through Certificates") and an Escrow Account
(entitled "GreenPoint Mortgage Funding, Inc., as Servicer, in trust for
Xxxxx Fargo Bank, N.A., as Securities Administrator for
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Xxxxxxx Xxxxx Mortgage Investors Trust MLMI Series 2006-A2 Mortgage
Pass-Through Certificates") with respect to the Assigned Loans, which
accounts shall be separate from the Custodial Account and Escrow Account
previously established under the Agreement in favor of the Assignor; and
f. Each of the representations and warranties made by Company in
Section 7.01 and Section 7.02 of the Agreement are true and correct in all
material respects as of the date hereof provided, however, that the
representations made in Section 7.02(v) are made as of the date of the
Agreement.
Recognition of Assignee
5. From and after the date hereof, Company shall recognize Assignee as
owner of the Assigned Loans and will service the Assigned Loans for Assignee in
accordance with the Agreement (as modified herein), the terms of which are
incorporated herein by reference. The Company hereby acknowledges that the
Mortgage Loans will be part of a REMIC. In no event will the Company service the
Mortgage Loans in a manner that would (i) cause the REMIC to fail to qualify as
a REMIC or (ii) result in the imposition of a tax upon the REMIC (including but
not limited to the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code). In addition, Company hereby acknowledges that from
and after the date hereof, the Assigned Loans will be subject to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of April
1, 2006, by and among Xxxxxxx Xxxxx Mortgage Investors, Inc., Xxxxx Fargo Bank,
N.A. (the "Master Servicer" and "Securities Administrator") and HSBC Bank USA,
National Association. Pursuant to the Pooling and Servicing Agreement, the
Master Servicer is required to monitor the Company's performance of its
servicing obligations under the Agreement. Such right will include, without
limitation, the right to terminate the Company under the Agreement upon the
occurrence of an event of default thereunder, the right to receive all
remittances required to be made by the Company under the Agreement, the right to
receive all monthly reports and other data required to be delivered by the
Company under the Agreement, the right to examine the books and records of the
Company, indemnification rights, and the right to exercise certain rights of
consent and approval relating to actions taken by the Company.
6. In connection therewith, Company hereby agrees that all remittances
required to be made with respect to the Assigned Loans pursuant to the Agreement
will be made in accordance with the following wire transfer instructions:
Bank: Xxxxx Fargo Bank, N.A.
ABA Routing Number: 000-000-000
Account Name: Corporate Trust Clearing
Account Number: 0000000000
For Credit to: MLMI Series 2006-A2, acct# 50909400
and Company shall deliver all reports required to be delivered under the
Agreement to Assignee and to the Master Servicer at:
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Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: MLMI 2006-A2
It is the intention of Assignor, Company and Assignee that this AAR
Agreement shall be binding upon and for the benefit of the respective successors
and assigns of the parties hereto. Neither Company nor Assignor shall amend or
agree to amend, modify, waive, or otherwise alter any of the terms or provisions
of the Agreement which amendment, modification, waiver or other alteration would
in any way affect the Assigned Loans without the prior written consent of
Assignee.
Modification of the Agreement
7. The Assignor, Assignee and Company hereby amend the Agreement as
follows:
(a) The Assignor, Assignee and Company hereby amend the definition of
"Remittance Date" by deleting the words "immediately following such" and
replacing them with "immediately preceding such".
(b) The Assignor, Assignee and Company hereby amend Section 1 of the
Agreement by deleting the definition of "Business Day" in its entirety and
replacing it with the following:
"Business Day: Any day other than a Saturday or Sunday, or a day on
which banking and savings and loan institutions in the State of New York,
State of Maryland, State of Minnesota or State of California are authorized
or obligated by law or executive order to be closed."
(c) The Assignor, Assignee and Company hereby amend Section 1 of the
Agreement by deleting the definition of "Whole Loan Transfer" in its
entirety and replacing it with the following:
"Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Pass-Through Transfer or Securitization
Transaction."
(d) The Assignor, Assignee and Company hereby amend Section 1 of the
Agreement by adding the following definitions in alphabetical order:
"Commission: The United States Securities and Exchange Commission."
"Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction."
"Exchange Act: The Securities Exchange Act of 1934, as amended."
"Master Servicer: Xxxxx Fargo Bank, N.A."
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"Pooling and Servicing Agreement: The pooling and servicing agreement
dated as of April 1, 2006, by and among Xxxxxxx Xxxxx Mortgage Investors,
Inc., the Master Servicer, the Securities Administrator and Wachovia Bank,
National Association, as trustee."
"Qualified Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are satisfied: (i)
such Mortgage Loans were originated pursuant to an agreement between the
Seller and such Person that contemplated that such Person would underwrite
mortgage loans from time to time, for sale to the Seller, in accordance
with underwriting guidelines designated by the Seller ("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 Seller within 180 days after
origination; (iii) either (x) the Designated Guidelines were, at the time
such Mortgage Loans were originated, used by the Seller in origination of
mortgage loans of the same type as the Mortgage Loans for the Seller's own
account or (y) the Designated Guidelines were, at the time such Mortgage
Loans were underwritten, designated by the Seller on a consistent basis for
use by lenders in originating mortgage loans to be purchased by the Seller;
and (iv) the Seller employed, at the time such Mortgage Loans were acquired
by the Seller, 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 Seller."
"Reconstitution: Any Securitization Transaction or Whole Loan
Transfer."
"Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be amended from time
to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act 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."
"Securities Administrator: Xxxxx Fargo Bank, N.A."
"Securitization Transaction: Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or
(2) an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to
one or more portfolios of residential mortgage loans consisting, in whole
or in part, of some or all of the Mortgage Loans."
"Seller Information: As defined in Subsection 12.05(a)."
"Servicer: As defined in Subsection 12.04(c)."
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"Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time."
"Static Pool Information: Static pool information as described in Item
1105(a)(1)-(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 but performs one or more discrete functions identified in
Item 1122(d) of Regulation AB with respect to Mortgage Loans under the
direction or authority of the Seller or a Subservicer."
"Subservicer: Any Person that services Mortgage Loans on behalf of the
Seller 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
Seller 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 Seller."
(e) The Assignor, Assignee and Company hereby amend Section 11.02 of
the Servicing Addendum to the Agreement by deleting the fifth, sixth and
seventh sentences of the first paragraph in their entirety and replacing
them with the following:
"In the event that any payment due under any Mortgage Loan remains
delinquent for a period of ninety (90) days or more, the Seller shall
provide written notice to the Master Servicer in the event the Seller
intends to proceed with foreclosure. In connection with any foreclosure
proceedings, the Seller shall be responsible for all costs and expenses
incurred by it in any such foreclosure proceedings; provided, however, that
it shall be entitled to reimbursement thereof from the related Mortgaged
Property, as contemplated in Section 11.05."
(f) The Assignor, Assignee and Company hereby amend each of the second
and fifth paragraphs of Section 11.02 of the Servicing Addendum to the
Agreement by deleting the section reference "(a)" at the beginning thereof.
(g) The Assignor, Assignee and Company hereby amend Section 11.14 of
the Servicing Addendum to the Agreement by deleting the first and second
sentences of the third paragraph in its entirety and replacing it with the
following:
"With respect to any remittance received by the Purchaser on or after the
Business Day following the Business Day on which such payment was due, the
Seller shall pay to the Purchaser interest on any such late payment at an
annual rate equal to the rate of interest as is publicly announced from
time to time by The Chase Manhattan Bank, New York, New York, at its
principal office as its prime lending rate, adjusted as of the date of each
change, plus three percentage points, but in no event greater than the
maximum amount permitted by applicable law. Such interest shall be paid by
the Seller to the Purchaser on
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the date such late payment is made and shall cover the period commencing
with the date on which such payment was due and ending with the date on
which such payment is made, both inclusive."
(h) The Assignor, Assignee and Company hereby amend Section 11.15 of
the Servicing Addendum to the Agreement by deleting the first sentence of
such section and replacing it with the following:
"No later than the fifth Business Day of each month, the Seller shall
furnish to the Purchaser and the Master Servicer a file via computer tape,
email or modem containing, and a hard copy of, the monthly data and the
Seller shall also furnish to the Purchaser and the Master Servicer a report
in the format set forth in Attachment 3, Attachment 4 and Attachment 5 to
the Assignment, Assumption and Recognition Agreement, dated as of April 1,
2006 among Xxxxxxx Xxxxx Mortgage Lending, Inc., Xxxxxxx Xxxxx Mortgage
Investors, Inc. and the Seller, with respect to monthly remittance advice,
defaulted Mortgage Loans and Realized Loss Calculations."
(i) The Assignor, Assignee and Company hereby amend Section 11.18 of
the Servicing Addendum to the Agreement, by deleting such section in its
entirety and replacing it with the following:
"Upon the foreclosure sale of any Mortgaged Property or the acquisition
thereof by the Purchaser pursuant to a deed-in-lieu of foreclosure, the
Seller shall submit to the Purchaser and the Master Servicer a liquidation
report in the format set forth in Attachment 4 to the Assignment,
Assumption and Recognition Agreement, dated as of April 1, 2006 among
Xxxxxxx Xxxxx Mortgage Lending, Inc., Xxxxxxx Xxxxx Mortgage Investors,
Inc. and the Seller, with respect to such Mortgaged Property and all
supporting documentation reasonably required by the Master Servicer."
(j) The Assignor, Assignee and Company hereby amend Section 11.21 of
the Servicing Addendum to the Agreement, by deleting the second paragraph
of such section in its entirety and replacing it with the following:
"The obligation of the Seller to make such Monthly Advances is
mandatory, notwithstanding any other provision of this Agreement, and, with
respect to any Mortgage Loan or REO Property, will continue through the
last Monthly Payment due prior to the payment in full of the Mortgage Loan,
or through the last Remittance Date prior to the Remittance Date for the
distribution of all Liquidation Proceeds and other payments or recoveries
(including REO Disposition proceeds, Insurance Proceeds and Condemnation
Proceeds) with respect to the Mortgage Loan; provided that, notwithstanding
anything herein to the contrary, no Monthly Advance shall be required to be
made hereunder by the Seller if such Monthly Advance would, if made,
constitute a Nonrecoverable Monthly Advance. The determination by the
Seller that it has made a Nonrecoverable Monthly Advance or that any
proposed Monthly Advance, if made, would constitute a Nonrecoverable
Monthly Advance, shall be evidenced by an Officers' Certificate delivered
to the Purchaser and Master Servicer."
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(k) The Assignor, Assignee and Company hereby amend Section 11.24 of
the Servicing Addendum to the Agreement, by deleting such section in its
entirety and replacing it with the following:
Section 11.24 Servicer Compliance Statement. On or before March 1 of
each calendar year, commencing in 2007, the Seller 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 Seller, to the effect that (i) a
review of the Seller's activities during the immediately preceding calendar
year (or applicable portion thereof) and of its performance under this
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 Seller has fulfilled
all of its obligations under this 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.
(l) The Assignor, Assignee and Company hereby amend Section 11.25 of
the Servicing Addendum to the Agreement, by deleting such section in its
entirety and replacing it with the following:
"Section 11.25 [Reserved]."
(m) The Assignor, Assignee and Company hereby amend the Servicing
Addendum to the Agreement by adding the following paragraphs immediately
after Section 11.31 of such Servicing Addendum to the Agreement:
"Section 11.32. Report on Assessment of Compliance and Attestation.
(a) On or before March 1 of each calendar year, commencing in 2007,
the Seller 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) regarding the
Seller'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, such Master Servicer
and such Depositor and signed by an authorized officer of the Seller,
and shall address each of the "Applicable Servicing Criteria"
specified on Attachment 7 to the Assignment, Assumption and
Recognition Agreement, dated as of April 1, 2006 among Xxxxxxx Xxxxx
Mortgage Lending, Inc., Xxxxxxx Xxxxx Mortgage Investors, Inc., and
the Seller;
(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,
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the assessment of compliance made by the Seller 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 Seller pursuant to Section 11.33(b) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB
and 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
(iv) deliver, and cause each Subservicer and Subcontractor
described in clause (iii) to provide, to the Purchaser, any Depositor,
any Master Servicer and any other Person that will be responsible for
signing the certification (a "Sarbanes Certification") required by
Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an
asset-backed issuer with respect to a Securitization Transaction a
certification, signed by the appropriate officer of the Seller, in the
form attached as Attachment 6 to the Assignment, Assumption and
Recognition Agreement, dated as of April 1, 2006 among Xxxxxxx Xxxxx
Mortgage Lending, Inc., Xxxxxxx Xxxxx Mortgage Investors, Inc., and
the Seller.
The Seller acknowledges that the parties identified in clause (a)(iv) above
may rely on the certification provided by the Seller pursuant to such
clause in signing a Sarbanes Certification and filing such with the
Commission.
(b) Each assessment of compliance provided by a Subservicer pursuant
to Section 11.32(a)(i) shall address each of the Servicing Criteria
specified on a certification, substantially in the form of Attachment 7 to
the Assignment, Assumption and Recognition Agreement, dated as of April 1,
2006 among Xxxxxxx Xxxxx Mortgage Lending, Inc., Xxxxxxx Xxxxx Mortgage
Investors, Inc., and the Seller, delivered to the Purchaser concurrently
with the execution of this Agreement or, in the case of a Subservicer
subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor
pursuant to Section 11.32(a)(iii) need not address any elements of the
Servicing Criteria other than those specified by the Seller pursuant to
Section 11.33.
Section 11.33. Use of Subservicers and Subcontractors.
The Seller shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Seller as servicer
under this Agreement or any Reconstitution Agreement unless the Seller
complies with the provisions of paragraph (a) of this Section. The Seller
shall not hire or otherwise utilize the services of any Subcontractor, and
shall not permit any Subservicer to hire or otherwise utilize the services
of any Subcontractor, to fulfill any of the obligations of the Seller as
servicer
12
under this Agreement or any Reconstitution Agreement unless the Seller
complies with the provisions of paragraph (b) of this Section.
(a) It shall not be necessary for the Seller to seek the consent of
the Purchaser, any Master Servicer or any Depositor to the utilization of
any Subservicer. The Seller shall cause any Subservicer used by the Seller
(or by any Subservicer) for the benefit of the Purchaser and any Depositor
to comply with the provisions of this Section, Section 11.24 and 11.32 and
Subsections 12.03, 12.04(c), (e), (f) and (g), and 12.05 of the Agreement
to the same extent as if such Subservicer were the Seller, and to provide
the information required with respect to such Subservicer under Subsection
12.04(d) of this Agreement. The Seller 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 11.24, any assessment of compliance and attestation required
to be delivered by such Subservicer under Section 11.32 and any
certification required to be delivered to the Person that will be
responsible for signing the Sarbanes Certification under Section 11.32 as
and when required to be delivered.
(b) It shall not be necessary for the Seller to seek the consent of
the Purchaser, any Master Servicer or any Depositor to the utilization of
any Subcontractor. The Seller shall promptly upon request provide to the
Purchaser, any Master Servicer and any Depositor (or any designee of the
Depositor, such as an administrator) a written description (in form and
substance satisfactory to the Purchaser, such Depositor and such Master
Servicer) of the role and function of each Subcontractor utilized by the
Seller or any Subservicer, specifying (i) the identity of each such
Subcontractor, (ii) which (if any) of such Subcontractors are
"participating in the servicing function" within the meaning of Item 1122
of Regulation AB, and (iii) which elements of the Servicing Criteria will
be addressed in assessments of compliance provided by each Subcontractor
identified pursuant to clause (ii) of this paragraph.
As a condition to the utilization of any Subcontractor determined to
be "participating in the servicing function" within the meaning of Item
1122 of Regulation AB, the Seller shall cause any such Subcontractor used
by the Seller (or by any Subservicer) for the benefit of the Purchaser and
any Depositor to comply with the provisions of Section 11.32 and Subsection
12.05 of the Agreement to the same extent as if such Subcontractor were the
Seller. The Seller 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 such Subcontractor under
Section 11.32, in each case as and when required to be delivered."
(n) The Assignor, Assignee and Company hereby amend the first
paragraph of Section 12 of the Agreement by adding the section reference
"Subsection 12.01" at the beginning thereof.
(o) The Assignor, Assignee and Company hereby amend Section 12 of the
Agreement by adding to the following paragraphs at the end of such Section
12:
13
"Subsection 12.02. Intent of the Parties; Reasonableness.
The Purchaser and the Seller acknowledge and agree that the purpose of
Subsections 12.02 through 12.06 of this Agreement or Sections 11.24, 11.32
or 11.33 of the Servicing Addendum to this Agreement is to facilitate
compliance by the Purchaser and any Depositor with the provisions of
Regulation AB and related rules and regulations of the Commission. 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 Seller 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 requests made by the
Purchaser, any Master Servicer 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 Seller shall cooperate fully with the Purchaser and any
Master Servicer to deliver to the Purchaser (including any of its assignees
or designees), any Master Servicer and any Depositor, any and all
statements, reports, certifications, records and any other information
necessary in the good faith determination of the Purchaser, the Master
Servicer or any Depositor to permit the Purchaser, such Master Servicer or
such Depositor to comply with the provisions of Regulation AB, together
with such disclosures relating to the Seller, 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.
Subsection 12.03. Additional Representations and Warranties of the
Seller.
(a) The Seller hereby represents to the Purchaser, to any Master
Servicer and to any Depositor, as of the date on which information is first
provided to the Purchaser, any Master Servicer or any Depositor under
Subsection 12.04 that, except as disclosed in writing to the Purchaser,
such Master Servicer or such Depositor prior to such date: (i) the Seller
is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to any
other securitization due to any act or failure to act of the Seller; (ii)
the Seller 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 Seller as
servicer has been disclosed or reported by the Seller; (iv) no material
changes to the Seller'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 Seller's financial condition that could have a material adverse
effect on the performance by the Seller 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 Seller, any Subservicer or any Third-
14
Party Originator; and (vii) there are no affiliations, relationships or
transactions relating to the Seller, any Subservicer or any Third-Party
Originator with respect to any Securitization Transaction and any party
thereto identified by the related Depositor of a type described in Item
1119 of Regulation AB.
(b) If so requested by the Purchaser, any Master Servicer or any
Depositor on any date following the date on which information is first
provided to the Purchaser, any Master Servicer or any Depositor under
Subsection 12.04, the Seller shall, within five 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.
Subsection 12.04. Information to Be Provided by the Seller.
In connection with any Securitization Transaction the Seller shall (i)
within five Business Days following 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), (f) and (g) of this Section, and (ii) as promptly as
practicable following notice to or discovery by the Seller, 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 by the Purchaser or any Depositor, the Seller
shall provide such information regarding (i) the Seller, 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 requested for the purpose of compliance
with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of Regulation AB. Such
information shall include, at a minimum:
(i) the originator's form of organization;
(ii) 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;
15
(iii) a description of any material legal or governmental
proceedings that, in the good faith judgment of the Purchaser or any
Depositor, would be material to holders of securities in a
Securitization Transaction, pending (or known to be contemplated)
against the Seller, each Third-Party Originator and each Subservicer;
and
(iv) a description of any affiliation or relationship between the
Seller, each Third-Party Originator, each Subservicer and any of the
following parties to a Securitization Transaction, as such parties are
identified to the Seller 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 by the Purchaser or any Depositor, the Seller
shall provide (or, as applicable, cause each Third-Party Originator to
provide) Static Pool Information with respect to the mortgage loans (of a
similar type as the Mortgage Loans, as reasonably identified by the
Purchaser as provided below) serviced by the Servicer or any Third-Party
Originator and originated by (i) the Seller, if the Seller is an originator
of Mortgage Loans (including as an acquirer of Mortgage Loans from a
Qualified Correspondent), and/or (ii) each Third-Party Originator. Such
Static Pool Information shall be prepared by the Seller (or Third-Party
Originator) on the basis of its reasonable, good faith interpretation of
the requirements of Item 1105(a)(1)-(3) of Regulation AB for the period of
time the Servicer (or Third-Party Originator) serviced such mortgage loans;
provided, however, that the Servicer shall not be required to provide
Static Pool Information with respect to mortgage loans originated prior to
January 1, 2006 pursuant to Item 1105(f) of Regulation AB so long as the
Servicer represents in writing to the Purchaser or any Depositor, as
applicable, that such Static Pool Information is unknown and not available
to the Servicer without unreasonable effort or expense. To the extent that
there is reasonably available to the Seller (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 Seller, and need not be customized for the Purchaser or any
Depositor. Such Information for each vintage origination year or prior
securitized pool, as applicable, 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
16
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.
If so requested by the Purchaser or any Depositor, the Seller 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 Agreement),
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 Seller's or
Third-Party Originator's 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 by the Purchaser or any Depositor, the Seller
shall provide such information regarding the Seller, as servicer of the
Mortgage Loans, and each Subservicer (each of the Seller and each
Subservicer, for purposes of this paragraph, a "Servicer"), as is
reasonably requested for the purpose of compliance with Items 1108, 1117
and 1119 of Regulation AB. Such information shall include, at a minimum:
(i) the Servicer's form of organization;
(ii) 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 this 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;
17
(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;
(iii) 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 this Agreement and any Reconstitution
Agreements for mortgage loans of a type similar to the Mortgage Loans;
(iv) 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 Seller of its servicing
obligations under this Agreement or any Reconstitution Agreement;
(v) 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;
(vi) 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;
(vii) 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;
(viii) information as to how the Servicer defines or determines
delinquencies and charge-offs, including the effect of any grace
period, re-aging,
18
restructuring, partial payments considered current or other practices
with respect to delinquency and loss experience; and
(ix) a description of any material legal or governmental
proceedings pending (or known to be contemplated) against the
Servicer; and
(x) a description of any affiliation or relationship between the
Servicer and any of the following parties to a Securitization
Transaction, as such parties are identified to the Servicer 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.
(d) For the purpose of satisfying the reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, the
Seller shall (or shall cause each Subservicer and Third-Party Originator
to) (i) provide prompt notice to the Purchaser, any Master Servicer and any
Depositor in writing of (A) any material litigation or governmental
proceedings that would be material to holders of securities in
Securitization Transaction involving the Seller, any Subservicer or any
Third-Party Originator, (B) any affiliations or relationships that develop
following the closing date of a Securitization Transaction between the
Seller, 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 Seller, and
(E) the Seller's entry into an agreement with a Subservicer to perform or
assist in the performance of any of the Seller'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 Seller or any Subservicer
as servicer or subservicer under this Agreement or any Reconstitution
Agreement by any Person (i) into which the Seller or such Subservicer may
be merged or consolidated, or (ii) which may be appointed as a successor to
the Seller or any Subservicer, the Seller shall provide to the Purchaser,
any Master Servicer, 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
19
reasonably requested 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 Seller, as servicer, is
obligated to provide pursuant to other provisions of this Agreement, not
later than ten days prior to the deadline for the filing of any
distribution report on Form 10-D in respect of any Securitization
Transaction that includes any of the Mortgage Loans serviced by the Seller
or any Subservicer, the Seller or such Subservicer, as applicable, shall,
to the extent the Seller or such Subservicer has knowledge, provide to the
party responsible for filing such report (including, if applicable, the
Master Servicer) notice of the occurrence of any of the following events
along with all information, data, and materials related thereto as may be
required to be included in the related distribution report on Form 10-D (as
specified in the provisions of Regulation AB referenced below):
(i) any material modifications, extensions or waivers of pool
asset terms, fees, penalties or payments during the distribution
period or that have cumulatively become material over time (Item
1121(a)(11) of Regulation AB);
(ii) material breaches of pool asset representations or
warranties or transaction covenants (Item 1121(a)(12) of Regulation
AB); and
(iii) information regarding new asset-backed securities issuances
backed by the same pool assets, any pool asset changes (such as,
additions, 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 Seller 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 Seller or any
Subservicer or the Seller or such Subservicer's performance hereunder.
Subsection 12.05. Indemnification; Remedies.
(a) The Seller 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 if applicable)
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
20
(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,
data, accountants' letter or other material provided under any of
Subsections 12.02 through 12.06 of this Agreement or Sections 11.24,
11.32 or 11.33 of the Servicing Addendum to this Agreement by or on
behalf of the Seller, or provided under any of Subsections 12.02
through 12.06 of this Agreement or Sections 11.24, 11.32 or 11.33 of
the Servicing Addendum to this Agreement by or on behalf of any
Subservicer, Subcontractor or Third-Party Originator (collectively,
the "Seller Information"), or (B) the omission or alleged omission to
state in the Seller Information a material fact required to be stated
in the Seller 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 Seller
Information and not to any other information communicated in
connection with a sale or purchase of securities, without regard to
whether the Seller Information or any portion thereof is presented
together with or separately from such other information;
(ii) any breach by the Seller of its obligations under
Subsections 12.02 through 12.06 of this Agreement or Sections 11.24,
11.32 or 11.33 of the Servicing Addendum to this Agreement, including
particularly any failure by the Seller, 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 Subsections 12.02 through 12.06 of
this Agreement or Sections 11.24, 11.32 or 11.33 of the Servicing
Addendum to this Agreement, including any failure by the Seller to
identify pursuant to Section 11.33(b) of the Servicing Addendum of
this Agreement any Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Seller of a representation or warranty
set forth in Subsection 12.03(a) or in a writing furnished pursuant to
Subsection 12.03(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 Seller of a
representation or warranty in a writing furnished pursuant to
Subsection 12.03(b) to the extent made as of a date subsequent to such
closing date; or
(iv) the negligence, bad faith or willful misconduct of the
Seller in connection with its performance under Subsections 12.02
through 12.06 of this Agreement or Sections 11.24, 11.32 or 11.33 of
the Servicing Addendum to this Agreement.
21
If the indemnification provided for herein is unavailable or
insufficient to hold harmless an Indemnified Party, then the Seller 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 Seller on
the other.
In the case of any failure of performance described in clause (a)(ii)
of this Section, the Seller 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 Seller, 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 Seller, 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 any of Subsections 12.02 through 12.06 of this Agreement or Sections
11.24, 11.32 or 11.33 of the Servicing Addendum to this Agreement, or any
breach by the Seller of a representation or warranty set forth in
Subsection 12.03(a) or in a writing furnished pursuant to Subsection
12.03(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 Seller of a representation or
warranty in a writing furnished pursuant to Subsection 12.03(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 Seller under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser or any Depositor, as applicable,
in its sole discretion to terminate the rights and obligations of the
Seller as servicer under this 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 Seller (and if the Seller is servicing any of the
Mortgage Loans in a Securitization Transaction, appoint a successor
servicer reasonably acceptable to any Master Servicer for such
Securitization Transaction); provided that to the extent that any provision
of this Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations following
termination of the Seller as servicer, such provision shall be given
effect.
(ii) Any failure by the Seller, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Section 11.24 or 11.32
of the Servicing Addendum to this
22
Agreement, including any failure by the Seller to identify pursuant to
Section 11.33(b) of the Servicing Addendum to this Agreement 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 Seller under
this Agreement and any applicable Reconstitution Agreement, and shall
entitle the Purchaser, any Master Servicer or any Depositor, as
applicable, in its sole discretion to terminate the rights and
obligations of the Seller as servicer under this Agreement and/or any
applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement to the contrary) of any compensation to the
Seller; provided that to the extent that any provision of this
Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations following
termination of the Seller as servicer, such provision shall be given
effect.
(iii) The Seller 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 Seller 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 this
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.
(c) The Purchaser and each Person who controls the Purchaser shall
indemnify the Seller, each affiliate of the Seller, each Person who
controls any of such parties or the Seller (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 Seller, 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) any untrue statement of a material fact contained or alleged
to be contained in any offering materials related to a Securitization
Transaction, including without limitation the registration statement,
prospectus, prospectus supplement, any private placement memorandum,
any offering circular, any computational materials, and any amendments
or supplements to the foregoing (collectively, the "Securitization
Materials"); or
(ii) the omission or alleged omission to state in the
Securitization Materials a material fact required to be stated in the
Securitization Materials or necessary in order to make the statements
therein, in the light
23
of the circumstances under which they were made, not misleading, but
only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission is other than a statement or
omission arising out of, resulting from, or based upon the Seller
Information.
Subsection 12.06. Third Party Beneficiary.
For purposes of Subsections 12.02 through 12.06 of this Agreement or
Sections 11.24, 11.32 or 11.33 of the Servicing Addendum to this Agreement
and any related provisions thereto, each Master Servicer shall be
considered a third-party beneficiary of this Agreement, entitled to all the
rights and benefits hereof as if it were a direct party to this Agreement."
(p) The Assignor, Assignee and Seller hereby amend Section 14.01 of
the Agreement by deleting such section in its entirety and replacing it
with the following:
"Subsection 14.01 Additional Indemnification by the Seller.
(a) In addition to the indemnification provided in Subsection 7.03,
the Seller shall indemnify the Purchaser and hold the Purchaser harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and any
other costs, fees and expenses that the Purchaser may sustain in any way
related to the failure of the Seller to perform its obligations under this
Agreement, including but not limited to its obligation to service and
administer the Mortgage Loans in strict compliance with the terms of this
Agreement or any reconstitution Agreement entered into purchase to Section
12, unless such failure is due to the Purchaser's willful misconduct or
gross negligence.
(b) The Seller shall indemnify and hold harmless the Master Servicer
and its officers, directors, agents and affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments and other costs and expenses arising out of or
based upon a breach by the Seller or any of its officers, directors, agents
or affiliates of its obligations under Attachment 6 to the Assignment,
Assumption and Recognition Agreement, dated as of April 1, 2006 among
Xxxxxxx Xxxxx Mortgage Lending, Inc., Xxxxxxx Xxxxx Mortgage Investors,
Inc., and the Seller or the negligence, bad faith or willful misconduct of
the Seller in connection therewith. If the indemnification provided for
herein is unavailable or insufficient to hold harmless the Master Servicer,
then the Seller agrees that it shall contribute to the amount paid or
payable by the Master Servicer as a result of the losses, claims, damages
or liabilities of the Master Servicer in such proportion as is appropriate
to reflect the relative fault of the Master Servicer on the one hand and
the Seller on the other in connection with a breach of the Servicer's
obligations under Attachment 6 to the Assignment, Assumption and
Recognition Agreement, dated as of April 1, 2006 among Xxxxxxx Xxxxx
Mortgage Lending, Inc., Xxxxxxx Xxxxx Mortgage Investors, Inc., and the
Seller or the Seller's negligence, bad faith or willful misconduct in
connection therewith."
Miscellaneous
24
8. All demands, notices and communications related to the Assigned Loans,
the Agreement and this AAR Agreement shall be in writing and shall be deemed to
have been duly given if personally delivered or mailed by registered mail,
postage prepaid, as follows:
a. In the case of Company,
GreenPoint Mortgage Funding, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
b. In the case of Assignor,
Xxxxxxx Xxxxx Mortgage Lending, Inc.
World Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MLMI 2006-A2
c. In the case of Assignee,
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MLMI 2006-A2
d. In the case of Master Servicer,
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: MLMI 2006-A2
9. This AAR Agreement shall be construed in accordance with the laws of the
State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
25
10. No term or provision of this AAR 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.
11. This AAR Agreement shall inure to the benefit of the successors and
assigns of the parties hereto. 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.
12. This AAR Agreement shall survive the conveyance of the Assigned Loans
as contemplated in this AAR Agreement.
13. This AAR 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.
14. In the event that any provision of this AAR Agreement conflicts with
any provision of the Agreements with respect to the Assigned Loans, the terms of
this AAR Agreement shall control.
15. Each party will pay any commissions it has incurred and the Assignor
shall pay the fees of its attorneys and reimburse the Company for all
out-of-pocket expenses, including attorney's fees, incurred by the Company in
connection with the negotiations for, documenting of and closing of the
transactions contemplated by this AAR Agreement.
16. For purposes of this AAR Agreement only, the Master Servicer shall be
considered a third party beneficiary, entitled to all the rights and benefits
accruing to any Master Servicer as set forth herein as if it were a direct party
to this AAR Agreement.
26
IN WITNESS WHEREOF, the parties hereto have executed this AAR Agreement as
of the day and year first above written.
XXXXXXX XXXXX MORTGAGE LENDING, INC.
Assignor
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Assignee
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
GREENPOINT MORTGAGE FUNDING, INC.
Company
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
ACKNOWLEDGED AND AGREED:
XXXXX FARGO BANK, N.A.
Master Servicer
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
ATTACHMENT l
ASSIGNED LOAN SCHEDULE
[INTENTIONALLY OMITTED]
ATTACHMENT 2
MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
See Exhibits 99.6 and 99.7
ATTACHMENT 3
MONTHLY REMITTANCE ADVICE
COLUMN NAME DESCRIPTION DECIMAL FORMAT COMMENT MAX SIZE
----------- ----------- ------- -------------- --------
SER_INVESTOR_NBR A value assigned by the Servicer to Text up to 10 digits 20
define a group of loans.
LOAN_NBR A unique identifier assigned to each loan Text up to 10 digits 10
by the investor.
SERVICER_LOAN_NBR A unique number assigned to a loan by the Text up to 10 digits 10
Servicer. This may be different than the
LOAN_NBR.
BORROWER_NAME The borrower name as received in the Maximum length of 30 (Last, First) 30
file. It is not separated by first and
last name.
SCHED_PAY_AMT Scheduled monthly principal and scheduled 2 No commas(,) or dollar signs ($) 11
interest payment that a borrower is
expected to pay, P&I constant.
NOTE_INT_RATE The loan interest rate as reported by the 4 Max length of 6 6
Servicer.
NET_INT_RATE The loan gross interest rate less the 4 Max length of 6 6
service fee rate as reported by the
Servicer.
SERV_FEE_RATE The servicer's fee rate for a loan as 4 Max length of 6 6
reported by the Servicer.
SERV_FEE_AMT The servicer's fee amount for a loan as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
NEW_PAY_AMT The new loan payment amount as reported 2 No commas(,) or dollar signs ($) 11
by the Servicer.
NEW_LOAN_RATE The new loan rate as reported by the 4 Max length of 6 6
Servicer.
ARM_INDEX_RATE The index the Servicer is using to 4 Max length of 6 6
calculate a forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal balance 2 No commas(,) or dollar signs ($) 11
at the beginning of the processing cycle.
ACTL_END_PRIN_BAL The borrower's actual principal balance 2 No commas(,) or dollar signs ($) 11
at the end of the processing cycle.
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle MM/DD/YYYY 10
that the borrower's next payment is due
to the Servicer, as reported by Servicer.
SERV_CURT_AMT_1 The first curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
SERV_CURT_DATE_1 The curtailment date associated with the MM/DD/YYYY 10
first curtailment amount.
CURT_ADJ_ AMT_1 The curtailment interest on the first 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
SERV_CURT_AMT_2 The second curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
SERV_CURT_DATE_2 The curtailment date associated with the MM/DD/YYYY 10
second curtailment amount.
CURT_ADJ_ AMT_2 The curtailment interest on the second 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
SERV_CURT_AMT_3 The third curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
SERV_CURT_DATE_3 The curtailment date associated with the MM/DD/YYYY 10
third curtailment amount.
CURT_ADJ_AMT_3 The curtailment interest on the third 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
PIF_AMT The loan "paid in full" amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
PIF_DATE The paid in full date as reported by the MM/DD/YYYY 10
Servicer.
ACTION_CODE The standard FNMA numeric code used to Action Code Key: 15=Bankruptcy, 2
indicate the default/delinquent status of 30=Foreclosure, , 60=PIF,
a particular loan. 63=Substitution,
65=Repurchase,70=REO
INT_ADJ_AMT The amount of the interest adjustment as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, 2 No commas(,) or dollar signs ($) 11
if applicable.
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if 2 No commas(,) or dollar signs ($) 11
applicable.
LOAN_LOSS_AMT The amount the Servicer is passing as a 2 No commas(,) or dollar signs ($) 11
loss, if applicable.
SCHED_BEG_PRIN_BAL The scheduled outstanding principal 2 No commas(,) or dollar signs ($) 11
amount due at the beginning of the cycle
date to be passed through to investors.
SCHED_END_PRIN_BAL The scheduled principal balance due to 2 No commas(,) or dollar signs ($) 11
investors at the end of a processing
cycle.
SCHED_PRIN_AMT The scheduled principal amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer for the current
cycle -- only applicable for
Scheduled/Scheduled Loans.
SCHED_NET_INT The scheduled gross interest amount less 2 No commas(,) or dollar signs ($) 11
the service fee amount for the current
cycle as reported by the Servicer -- only
applicable for Scheduled/Scheduled Loans.
ACTL_PRIN_AMT The actual principal amount collected by 2 No commas(,) or dollar signs ($) 11
the Servicer for the current reporting
cycle -- only applicable for
Actual/Actual Loans.
ACTL_NET_INT The actual gross interest amount less the 2 No commas(,) or dollar signs ($) 11
service fee amount for the current
reporting cycle as reported by the
Servicer -- only applicable for
Actual/Actual Loans.
PREPAY_PENALTY_ AMT The penalty amount received when a 2 No commas(,) or dollar signs ($) 11
borrower prepays on his loan as reported
by the Servicer.
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the 2 No commas(,) or dollar signs ($) 11
loan waived by the servicer.
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
MOD_TYPE The Modification Type. Varchar - value can be alpha or 30
numeric
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and 2 No commas(,) or dollar signs ($) 11
interest advances made by Servicer.
ATTACHMENT 4
REPORTING DATA FOR DEFAULTED LOANS
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 MM/DD/YYYY
to the servicer at the end of processing cycle, as
reported by Servicer.
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim 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 MM/DD/YYYY
approved by the courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. MM/DD/YYYY
Either by Dismissal, Discharged and/or a Motion
For Relief Was Granted.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The MM/DD/YYYY
Servicer
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan
Such As;
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation/Plan Is Scheduled To MM/DD/YYYY
End/Close
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 MM/DD/YYYY
with instructions to begin foreclosure proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue MM/DD/YYYY
Foreclosure
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a MM/DD/YYYY
Foreclosure Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected MM/DD/YYYY
to occur.
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the foreclosure 2 No commas(,) or
sale. dollar signs ($)
EVICTION_START_DATE The date the servicer initiates eviction of the MM/DD/YYYY
borrower.
EVICTION_COMPLETED_DATE The date the court revokes legal possession of the MM/DD/YYYY
property from the borrower.
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,) or
dollar signs ($)
LIST_DATE The date an REO property is listed at a particular MM/DD/YYYY
price.
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,) or
dollar signs ($)
OFFER_DATE_TIME The date an offer is received by DA Admin or by MM/DD/YYYY
the Servicer.
REO_CLOSING_DATE The date the REO sale of the property is scheduled MM/DD/YYYY
to close.
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is occupied.
PROP_CONDITION_CODE A code that indicates the condition of the
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 2
on brokers price opinion or appraisal.
REPAIRED_PROP_VAL The amount the property would be worth if repairs 2
are completed pursuant to a broker's price opinion
or appraisal.
IF APPLICABLE:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
DELINQ_REASON_CODE The circumstances which caused a borrower to stop
paying on a loan. Code indicates the reason why
the loan is in default for this cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With MM/DD/YYYY
Mortgage Insurance Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or
dollar signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim MM/DD/YYYY
Payment
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,) or
dollar signs ($)
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 ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By MM/DD/YYYY
The Pool Insurer
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,) or
dollar signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or
dollar signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or
dollar signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or
dollar signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or
dollar signs ($)
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or
dollar signs ($)
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
- Gone
- Good
- Poor
- Special Hazard
- Unknown
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
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
ATTACHMENT 5
REALIZED LOSS CALCULATION INFORMATION
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.
(d)
(e) 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.
(f) 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 ( ).
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)
ESCROW DISBURSEMENT DETAIL
TYPE PERIOD OF
(TAX /INS.) DATE PAID COVERAGE TOTAL PAID BASE AMOUNT PENALTIES INTEREST
----------- --------- --------- ---------- ----------- --------- --------
ATTACHMENT 6
FORM OF ANNUAL CERTIFICATION
Re: The [___] agreement dated as of [________ l, 200[_] (the "Agreement"),
among [IDENTIFY PARTIES]
I, ____________________________, the _______________________ of [NAME OF
COMPANY] (the "Company"), 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:
I have reviewed the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the "Compliance Statement"), the
report on assessment of the Company's compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the "Servicing Criteria"), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the "Exchange Act") and Item 1122 of Regulation AB (the "Servicing
Assessment"), the registered public accounting firm's attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act and
Section 1122(b) of Regulation AB (the "Attestation Report"), and all servicing
reports, officer's certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 200[_] that were delivered by the
Company to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee] pursuant to the Agreement (collectively, the "Company Servicing
Information");
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;
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];
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
The Compliance Statement required to be delivered by the Company pursuant to
this 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:
---------------------------------
ATTACHMENT 7
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
REFERENCE CRITERIA CRITERIA
--------- ------------------------------------------------------------- -----------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any X
performance or 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 X
parties, 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 X
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.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate X
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.
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 X
flows or 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 X
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.
1122(d)(2)(v) Each custodial account is maintained at a federally insured X
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.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized X
access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all X
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
SERVICING CRITERIA APPLICABLE
-------------------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
--------- ------------------------------------------------------------- -----------
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 X
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.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in X
accordance with 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 X
business days to the Servicer's investor records, or such
other number of days specified in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree X
with 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 X
required by the transaction agreements or related mortgage
loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as X
required by the transaction agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool X
are made, 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 X
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.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree X
with the 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 X
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.
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.
1122(d)(4)(viii) Records documenting collection efforts are maintained during X
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).
SERVICING CRITERIA APPLICABLE
-------------------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
--------- ------------------------------------------------------------- -----------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage X
loans with 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 X
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.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or X
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.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to X
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.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within X
two business 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 X
recognized and recorded in accordance with the transaction
agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item [X]
1114(a)(1) through (3) or Item 1115 of Regulation AB, is if obligated
maintained as set forth in the transaction agreements. under
transaction
documents
ATTACHMENT 8
LIST OF APPRAISAL FIRMS
[INTENTIONALLY OMITTED]
