Exhibit 99.12(a)
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated March
1, 2006, ("Agreement") among Xxxxxx Xxxxxxx Mortgage Capital Inc.
("Assignor"), Xxxxxx Xxxxxxx Capital I Inc. ("Assignee") and HSBC Mortgage
Corporation (USA) as seller (in such capacity, the "Seller") and servicer (in
such capacity, the "Servicer", and together with the Seller, the "Company")
and acknowledged by LaSalle Bank National Association ("LaSalle"), as trustee
(the "Trustee") of Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-5AR (the "Trust")
and Xxxxx Fargo Bank, National Association, as master servicer (or any
successor master servicer, the "Master Servicer"):
For and in consideration of the sum of TEN DOLLARS ($10.00) and
other valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
Assignment and Conveyance
-------------------------
1. (a) The Assignor hereby conveys, sells, grants, transfers and
assigns to the Assignee all of the right, title and interest of the Assignor,
as purchaser, in, to and under (a) those certain Mortgage Loans listed on the
schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit I (the
"Mortgage Loans") and (b) except as described below, all of its rights and
obligations under that certain Mortgage Loan Sale And Servicing Agreement (the
"Sale and Servicing Agreement"), dated as of August 1, 2005, between the
Assignor, as purchaser (the "Purchaser"), and the Company, as seller and
servicer, solely insofar as the Sale and Servicing Agreement relates to the
Mortgage Loans (the "First Assignment and Assumption").
The Assignor specifically reserves and does not assign to the
Assignee hereunder any and all right, title and interest in, to and under and
any obligations of the Assignor with respect to (a) Subsection 7.04 of the
Sale and Servicing Agreement or (b) any mortgage loans subject to the Sale and
Servicing Agreement which are not the Mortgage Loans set forth on the Mortgage
Loan Schedule and are not the subject of this Agreement.
(b) On and of the date hereof, immediately after giving effect to
the First Assignment and Assumption, the Assignee hereby sells, assigns and
transfers to the Trustee, on behalf of the Trust, all of its right, title and
interest in the Specified Mortgage Loans and all rights and obligations
related thereto as provided under the Sale and Servicing Agreement to the
extent relating to the Specified Mortgage Loans, and the Trustee, on behalf of
the Trust, hereby accepts such assignment from the Assignee (the "Second
Assignment and Assumption"), and the Company hereby acknowledges the Second
Assignment and Assumption.
Recognition of the Company
--------------------------
2. The Company hereby acknowledges and agrees that from and after the
date hereof (i) the Trust under the Pooling and Servicing Agreement dated as
of March 1, 2006 (the "Pooling and Servicing Agreement") among the Assignor,
Xxxxx Fargo Bank, National Association, as master servicer (the "Master
Servicer") and securities administrator and the Trustee, will be the owner of
the Mortgage Loans, (ii) notwithstanding anything stated to the contrary
herein, the Company shall look solely to the Trust for performance of any
obligations of the Assignor insofar as they relate to the enforcement of the
representations, warranties and covenants with respect to the Mortgage Loans,
provided that it is understood and agreed that the Company shall look to
Assignor for performance of any obligations of the Assignor that have not
been assigned to Assignee and its successors as set forth herein, (iii) the
Trust (including the Trustee and, with respect to the servicing of the
Mortgage Loans, the Master Servicer acting on the Trust's behalf) shall have
all the rights and remedies available to the Assignor, insofar as they relate
to the Mortgage Loans, under the Sale and Servicing Agreement, including,
without limitation, the enforcement of the document delivery requirements set
forth in Section 6 of the Sale and Servicing Agreement, and shall be entitled
to enforce all of the obligations of the Company thereunder insofar as they
relate to the Mortgage Loans, and (iv) all references to the Purchaser
(insofar as they relate to the rights, title and interest and, with respect to
obligations of the Purchaser, only insofar as they relate to the enforcement
of the representations, warranties and covenants of the Company) under the
Sale and Servicing Agreement insofar as they relate to the Mortgage Loans,
shall be deemed to refer to the Trust (including the Trustee and the Master
Servicer acting on the Trust's behalf). Neither the Company nor the Assignor
shall amend or agree to amend, modify, waiver, or otherwise alter any of the
terms or provisions of the Sale and Servicing Agreement which amendment,
modification, waiver or other alteration would in any way affect the Mortgage
Loans or the Company's performance under the Sale and Servicing Agreement with
respect to the Mortgage Loans without the prior written consent of the Master
Servicer.
Representations and Warranties of the Company
---------------------------------------------
3. The Company warrants and represents to the Assignor, the Assignee
and the Trust as of the date hereof that:
a. The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
b. The Company has full power and authority to execute, deliver
and perform its obligations under this Agreement and has full power and
authority to perform its obligations under the Sale and Servicing
Agreement. The execution by the Company of this Agreement is in the
ordinary course of the Company's business and will not conflict with, or
result in a breach of, any of the terms, conditions or provisions of the
Company's charter or bylaws or any legal restriction, or any material
agreement or instrument to which the Company is now a party or by which
it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Company or its property is
subject. The execution, delivery and performance by the Company of this
Agreement have been duly authorized by all necessary corporate action on
part of the Company. This Agreement has been duly executed and delivered
by the Company, and, upon the due authorization, execution and delivery
by the Assignor and the Assignee, will constitute the valid and legally
binding obligation of the Company, enforceable against the Company in
accordance with its terms except as enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally, and
by general principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law;
c. No consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is
required to be obtained or made by the Company in connection with the
execution, delivery or performance by the Company of this Agreement;
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d. There is no action, suit, proceeding or investigation pending
or threatened against the Company, before any court, administrative
agency or other tribunal, which would draw into question the validity of
this Agreement or the Sale and Servicing Agreement, or which, either in
any one instance or in the aggregate, would result in any material
adverse change in the ability of the Company to perform its obligations
under this Agreement or the Sale and Servicing Agreement, and the
Company is solvent.
4. The Servicer hereby acknowledges that Xxxxx Fargo Bank, National
Association has been appointed as the Master Servicer of the Mortgage Loans
pursuant to the Pooling and Servicing Agreement and, therefore, has the right
to enforce all obligations of the Servicer under the Agreement. Such rights
will include, without limitation, the right to terminate the Servicer under
the Agreement upon the occurrence of an event of default thereunder, the right
to receive all remittances required to be made by the Servicer under the
Agreement, the right to receive all monthly reports and other data required to
be delivered by the Servicer under the Agreement, the right to examine the
books and records of the Servicer, indemnification rights and the right to
exercise certain rights of consent and approval relating to actions taken by
MSMCI. The Servicer shall make all distributions under the Agreement to the
Master Servicer by wire transfer of immediately available funds to:
Xxxxx Fargo Bank, National Association
ABA Number: 000-000-000
Account Name: Corporate Trust Clearing
Account number: 0000000000
For further credit to: 50909000, MSM 2006-5AR
The Servicer shall deliver all reports required to be delivered to the
Purchaser under the Agreement to the Master Servicer at the following address:
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Xxxxxxx, XXX 0000-0XX
Office Number: (000) 000-0000
Telecopier: (000) 000-0000
5. Pursuant to Section 14 of the Sale and Servicing Agreement, the
Company hereby represents and warrants, for the benefit of the Assignor, the
Assignee and the Trust, that the representations and warranties set forth in
Subsections 7.01 and 7.02 of the Sale and Servicing Agreement are true and
correct as of the date hereof as if such representations and warranties were
made on the date hereof unless otherwise specifically stated in such
representations and warranties.
6. Remedies for Breach of Representations and Warranties.
---------------------------------------------------------
a. The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the
Trustee and the Master Servicer acting on the Trust's behalf) in
connection with any breach of the representations and warranties made by
the Company set forth in Sections 3 and 4 hereof
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shall be as set forth in Subsection 7.03 of the Sale and Servicing
Agreement as if they were set forth herein (including without limitation
the repurchase and indemnity obligations set forth therein).
b. It is expressly understood and agreed by the parties hereto
that (i) this Agreement is executed and delivered by LaSalle, not
individually or personally but solely on behalf of the Trust, as the
assignee, in the exercise of the powers and authority conferred and
vested in it, as Trustee, pursuant to the Pooling and Servicing
Agreement, (ii) each of the representations, undertakings and agreements
herein made on the part of assignee is made and intended not as personal
representations, undertakings and agreements by LaSalle but is made and
intended for the purpose of binding only the Trust, (iii) nothing herein
contained shall be construed as creating any liability for LaSalle,
individually or personally, to perform any covenant (either express or
implied) contained herein and (iv) under no circumstances shall LaSalle
be personally liable for the payment of any indebtedness or expenses of
the Trust, or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust
under this Agreement and (v) all recourse for any payment liability or
other obligation of the assignee shall be had solely to the assets of
the Trust.
7. Representations and Warranties of Other Parties
---------------------------------------------------------
a. The Assignee represents and warrants that it is a sophisticated
investor able to evaluate the risks and merits of the transactions
contemplated hereby, and that it has not relied in connection therewith
upon any statements or representations of the Assignor or the Company
other than those contained in the Sale and Servicing Agreement or this
Agreement.
b. Each of the parties hereto (other than the Company) represents
and warrants that it is duly and legally authorized to enter into this
Agreement.
c. Each of the Assignor and Assignee represents and warrants that
this Agreement has been duly authorized, executed and delivered by it
and (assuming due authorization, execution and delivery thereof by each
of the other parties hereto) constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
8. Amendments to the Sale and Servicing Agreement
----------------------------------------------
The parties to this Agreement hereby agree to amend the Sale and
Servicing Agreement with respect to the Specified Mortgage Loans, as follows:
(a) "Business Day" shall have the meaning of such term as defined in the
Pooling and Servicing Agreement.
(b) "Eligible Investments" shall have the meaning of such term as
defined in the Pooling and Servicing Agreement.
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(c) The definition of "Remittance Date" in Section 1 is hereby amended
and restated in its entirety as follows:
"Remittance Date: The 18th day of each month (or, if such 18th day
is not a Business Day, the prior Business Day)."
(d) The second sentence of the definition of "Servicing Fee" in Section
1 is hereby amended and restated in its entirety as follows:
"Such fee shall be payable monthly, computed on the basis of the
same principal amount and period respecting which any related
interest payment on a Mortgage Loan is computed."
(e) The definition of "Servicing Fee Rate" in Section 1 is hereby
amended and restated in its entirety as follows:
"Servicing Fee Rate: The Servicing Fee rate for the Serviced Loans
shall be equal to 0.375% per annum , for any Serviced Loan with a
three-year interest-only term. For all other serviced loans, the
Servicing Fee is 0.250%."
(f) The first sentence of the second paragraph of Subsection 11.01 of
the Sale and Servicing Agreement is hereby amended and restated in its
entirety as follows:
"Consistent with the terms of this Agreement, the Servicer
may waive, modify or vary any term of any Mortgage Loan or consent
to the postponement of strict compliance with any such term or in
any manner grant indulgence to any Mortgagor; provided, however,
that (unless the Mortgagor is in default with respect to the
Mortgage Loan, or such default is, in the judgment of the
Servicer, imminent, and the Servicer has the consent of the
Purchaser) the Servicer shall not permit any modification with
respect to any Mortgage Loan which materially and adversely
affects the Mortgage Loan, including without limitation, any
modification that would defer or forgive the payment of any
principal or interest or any penalty or premium on the prepayment
of principal, change the outstanding principal amount (except for
actual payments of principal), make any future advances, extend
the final maturity date or change the Mortgage Interest Rate, as
the case may be, with respect to such Mortgage Loan."
(g) The last paragraph of Subsection 11.01 of the Sale and Servicing
Agreement is hereby deleted in its entirety.
(h) Subsection 11.11 of the Sale and Servicing Agreement is hereby
amended by adding the following at the end thereof:
Upon the request of the Master Servicer, or the Purchaser or its
designee, the Company shall cause to be delivered to such Master
Servicer, Purchaser or its designee a certificate of insurance for
such Fidelity Bond and Errors and Omissions Insurance Policy and a
statement from the surety and the insurer that such Fidelity Bond
and Errors and Omissions Insurance Policy shall in no event be
terminated or materially modified without 30 days' prior written
notice to such Master Servicer, Purchaser, or its designee.
(i) The fifth paragraph of Subsection 11.12 of the Sale and Servicing
Agreement is hereby amended and restated in its entirety as follows:
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"With respect to any REO Property, the deed or certificate
of sale shall be taken in the name of the Purchaser, or its
designee. The Trustee's name shall be placed on the title to such
REO Property solely as the Trustee hereunder and not in its
individual capacity. The Servicer shall ensure that the title to
such REO Property references the Agreement and the Purchaser's (or
its designee's) capacity thereunder. Pursuant to its efforts to
sell such REO Property, the Servicer shall either itself or
through an agent selected by the Servicer protect and conserve
such REO Property in the same manner and to such extent as is
customary in the locality where such REO Property is located and
may, incident to its conservation and protection of the interests
of the Purchaser, or its designee, rent the same, or any part
thereof, as the Servicer deems to be in the best interest of the
Purchaser, or its designee, for the period prior to the sale of
such REO Property. The Servicer shall prepare for and deliver to
the Purchaser, or its designee, a statement with respect to each
REO Property that has been rented showing the aggregate rental
income received and all expenses incurred in connection with the
maintenance of such REO Property at such times as is necessary to
enable the Purchaser, or its designee, to comply with the
reporting requirements of the REMIC Provisions. The net monthly
rental income, if any, from such REO Property shall be deposited
in the Certificate Account no later than the close of business on
each Determination Date. The Servicer shall perform the tax
reporting and withholding required by Sections 1445 and 6050J of
the Code with respect to foreclosures and abandonments, the tax
reporting required by Section 6050H of the Code with respect to
the receipt of mortgage interest from individuals and any tax
reporting required by Section 6050P of the Code with respect to
the cancellation of indebtedness by certain financial entities, by
preparing such tax and information returns as may be required, in
the form required, and delivering the same to the Purchaser, or
its designee, for filing.
In the event that the Purchaser, or its designee, acquires
any Mortgaged Property as aforesaid or otherwise in connection
with a default or imminent default on a Mortgage Loan, the
Servicer shall dispose of such Mortgaged Property as soon as
practicable in a manner that maximizes the Liquidation Proceeds
thereof, but in no event later than three years after its
acquisition by the Purchaser, or its designee, unless (x) the
Servicer obtains an extension of REMIC status from the Internal
Revenue Service or (y) the Purchaser, or its designee, shall have
been supplied with an Opinion of Counsel to the effect that the
holding by the Purchaser, or its designee, of such Mortgaged
Property subsequent to a three-year period, if applicable, will
not result in the imposition of taxes on "prohibited transactions"
of any REMIC as defined in section 860F of the Code or cause any
REMIC to fail to qualify as a REMIC at any time, the Purchaser, or
its designee, may continue to hold such Mortgaged Property
(subject to any conditions contained in such Opinion of Counsel)
after the expiration of such three-year period. Notwithstanding
any other provision of this Agreement, no Mortgaged Property
acquired by the Purchaser, or its designee, shall be rented (or
allowed to continue to be rented) or otherwise used for the
production of income by or on behalf of the Purchaser, or its
designee, in such a manner or pursuant to any terms that would (i)
cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of section 860G(a)(8) of the Code or
(ii) subject any REMIC to the imposition of any federal, state or
local income taxes on the income earned from such Mortgaged
Property under Section 860G(c) of the Code or otherwise, unless
the Servicer has agreed to indemnify
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and hold harmless the Purchaser, or its designee, with respect to
the imposition of any such taxes."
(j) The first sentence of Subsection 11.15 of the Sale and Servicing
Agreement is hereby amended and restated in its entirety as follows:
"Statements to the Master Servicer. Not later than the tenth
calendar day of each month (or, if such 10th day is not a Business
Day, the following Business Day) the Servicer shall furnish to the
Master Servicer in electronic format a statement providing loan
level accounting data for the period ending on the last Business
Day of the preceding month in the format mutually agreed to
between the Servicer and the Master Servicer. The information
required shall consist of that which is substantially in the form
of Exhibit II hereto or such other form as may be mutually agreed
upon by the Servicer and the Master Servicer, taking into
consideration the status of the subject loans and the availability
of the requested information.
(k) Subsections 11.19, 11.20 and 11.25 of the Sale and Servicing
Agreement are hereby deleted.
(l) Subsection 12.01(b) of the Sale and Servicing Agreement is hereby
amended and restated in its entirety as follows:
"failure by the Servicer to duly observe or perform, in any
material respect, any other covenants, obligations or agreements
of the Servicer as set forth in this Agreement which failure
continues unremedied for a period of sixty (60) days;
(m) The word "or" is deleted from the end of Subsection 12.01(d), the
word "or" is added at the end of Subsection 12.01(e) and the following
paragraph is hereby incorporated into the Sale and Servicing Agreement as new
Subsection 12.01(f):
"(f) failure by the Servicer to duly perform, within the required
time period, its obligations under Sections 2.04 and 2.05 of the
Regulation AB Addendum which failure continues unremedied after
the date on which written notice of such failure requiring the
same to be remedied, shall have been given to the Servicer by any
party to this Agreement or by any master servicer responsible for
master servicing the Mortgage Loans pursuant to a securitization
of such Mortgage Loans;"
(n) The first sentence of Subsection 13.01 of the Sale and Servicing
Agreement is hereby amended and restated in its entirety as follows:
"Termination. The respective obligations and
responsibilities of the Servicer, as servicer, shall terminate
upon (a) the distribution to the Purchaser of the final payment or
liquidation with respect to the last Mortgage Loan (or advances of
same by the Servicer); or (b) the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure with
respect to the last Mortgage Loan and the remittance of all funds
due hereunder.
(o) Subsection 13.02 of the Sale and Servicing Agreement is hereby
amended and restated in its entirety as follows:
"[Reserved]."
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(p) The fourth paragraph of Section 14 of the Sale and Servicing
Agreement is hereby deleted in its entirety.
(q) The first sentence of Subsection 16.01 is hereby amended by adding
the words ", including any Master Servicer" after the words "employees and
agents" therein.
(r) The following paragraph is hereby incorporated into the Sale and
Servicing Agreement as new Section 36:
"Third Party Beneficiary. For purposes of this Agreement,
including but not limited the Regulation AB Addendum, any Master
Servicer shall be considered a third party beneficiary to this
Agreement entitled to all the rights and benefits accruing to any
Master Servicer herein as if it were a direct party to this
Agreement."
(s) Exhibit 6 to the Sale and Servicing Agreement is hereby replaced in
its entirety with Exhibit II attached hereto.
(t) Exhibit 8 to the Sale and Servicing Agreement is hereby deleted in
its entirety.
(u) Subsections 11.19 and 11.20 to the Sale and Servicing Agreement are
hereby deleted in their entirety and replaced with Sections 2.04 and 2.05 of
the Regulation AB Addendum attached hereto.
(v) The terms and provisions contained in the Regulation AB Addendum
attached to this Agreement as Exhibit III are hereby incorporated into the
Sale and Servicing Agreement.
Miscellaneous
-------------
9. Any notices or other communications permitted or required under the
Agreement to be made to the Assignor, Assignee, the Company, and the Trustee
shall be made in accordance with the terms of the Sale and Servicing Agreement
and shall be sent as follows:
In the case of the Assignee:
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-5AR
In the case of the Trustee:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services MSM 2006-5AR
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In the case of the Company:
HSBC Mortgage Corporation (USA)
0000 Xxxxxx Xxx
Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
10. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law
principles (except for Section 5-1401 of the General Obligations
Law), and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
11. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be
enforced.
12. This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including
the Trustee acting on the Trust's behalf). Any entity into which
Assignor, Assignee or Company may be merged or consolidated shall,
without the requirement for any further writing, be deemed
Assignor, Assignee or Company, respectively, hereunder.
13. Each of this Agreement and the Sale and Servicing Agreement shall
survive the conveyance of the Mortgage Loans and the assignment of
the Sale and Servicing Agreement (solely with respect to the
Mortgage Loans) by Assignor to Assignee and by Assignee to the
Trust and nothing contained herein shall supersede or amend the
terms of the Sale and Servicing Agreement.
14. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original
and all such counterparts shall constitute one and the same
instrument.
15. In the event that any provision of this Agreement conflicts with
any provision of the Sale and Servicing Agreement with respect to
the Mortgage Loans, the terms of this Agreement shall control.
16. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings
given to such terms in the Sale and Servicing Agreement.
17. The Assignee will hold information in confidence as set forth in
Section 32 of the Sale and Servicing Agreement, provided such
information may be disclosed to regulatory or administrative
authorities or attorneys, auditors or agents in the performance of
the Pooling and Servicing Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: XX
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: VP
HSBC MORTGAGE CORPORATION (USA)
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant VP
Acknowledged and Agreed:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By: /s/ Xxxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxxx Xxxxx
Title: VP
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee of Xxxxxx Xxxxxxx
Mortgage Loan Trust 2006-5AR
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Assistant VP
EXHIBIT I
Mortgage Loan Schedule
[see Schedule A to Pooling and Servicing Agreement]
Exhibit IIA: Standard File Layout - Delinquency Reporting
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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
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LOAN_NBR A unique identifier assigned to each loan by the
originator.
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CLIENT_NBR Servicer Client Number
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SERV_INVESTOR_NBR Contains a unique number as assigned by an external
servicer to identify a group of loans in their
system.
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BORROWER_FIRST_NAME First Name of the Borrower.
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BORROWER_LAST_NAME Last name of the borrower.
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PROP_ADDRESS Street Name and Number of Property
------------------------------------------------------------------------------------------------------------------------------
PROP_STATE The state where the property located.
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PROP_ZIP Zip code where the property is located.
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BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due to MM/DD/YYYY
the servicer at the end of processing cycle, as
reported by Servicer.
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LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
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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.
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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;
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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.
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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 to MM/DD/YYYY
occur.
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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 dollar signs
sale. ($)
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EVICTION_START_DATE The date the servicer initiates eviction of the MM/DD/YYYY
borrower.
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EVICTION_COMPLETED_DATE The date the court revokes legal possession of the MM/DD/YYYY
property from the borrower.
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LIST_PRICE The price at which an REO property is marketed. 2 No commas(,) or dollar signs
($)
------------------------------------------------------------------------------------------------------------------------------
LIST_DATE The date an REO property is listed at a particular MM/DD/YYYY
price.
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OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,) or dollar signs
($)
------------------------------------------------------------------------------------------------------------------------------
OFFER_DATE_TIME The date an offer is received by DA Admin or by the MM/DD/YYYY
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 on 2
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
($)
------------------------------------------------------------------------------------------------------------------------------
2
Exhibit IIB: Standard File Codes - Delinquency Reporting
The Loss Mit Type field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply
Xxxxx Fargo Bank with a description of each of the Loss Mitigation Types prior
to sending the file.
The Occupant Code field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The Property Condition field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
The FNMA Delinquent Reason Code field should show the Reason for Delinquency
as follows:
--------------------------------------------------------
Delinquency Delinquency Description
Code
--------------------------------------------------------
001 FNMA-Death of principal mortgagor
--------------------------------------------------------
002 FNMA-Illness of principal mortgagor
--------------------------------------------------------
003 FNMA-Illness of mortgagor's family
member
--------------------------------------------------------
004 FNMA-Death of mortgagor's family
member
--------------------------------------------------------
005 FNMA-Marital difficulties
--------------------------------------------------------
006 FNMA-Curtailment of income
--------------------------------------------------------
007 FNMA-Excessive Obligation
--------------------------------------------------------
008 FNMA-Abandonment of property
--------------------------------------------------------
009 FNMA-Distant employee transfer
--------------------------------------------------------
--------------------------------------------------------
011 FNMA-Property problem
--------------------------------------------------------
012 FNMA-Inability to sell property
--------------------------------------------------------
013 FNMA-Inability to rent property
--------------------------------------------------------
014 FNMA-Military Service
--------------------------------------------------------
015 FNMA-Other
--------------------------------------------------------
016 FNMA-Unemployment
--------------------------------------------------------
017 FNMA-Business failure
--------------------------------------------------------
019 FNMA-Casualty loss
--------------------------------------------------------
022 FNMA-Energy environment costs
--------------------------------------------------------
023 FNMA-Servicing problems
--------------------------------------------------------
026 FNMA-Payment adjustment
--------------------------------------------------------
027 FNMA-Payment dispute
--------------------------------------------------------
029 FNMA-Transfer of ownership pending
--------------------------------------------------------
030 FNMA-Fraud
--------------------------------------------------------
031 FNMA-Unable to contact borrower
--------------------------------------------------------
INC FNMA-Incarceration
--------------------------------------------------------
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
-------------------------------------------------------
4
Exhibit IIC: Standard File Layout - Master Servicing
----------------------------------------------------------------------------------------------------------
Column Name Description Decimal Format Comment Max
Size
----------------------------------------------------------------------------------------------------------
SER_INVESTOR_NBR A value assigned by the Servicer Text up to 10 digits 20
to define a group of loans.
----------------------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned to Text up to 10 digits 10
each loan by the investor.
----------------------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a loan Text up to 10 digits 10
by the Servicer. This may be
different than the LOAN_NBR.
----------------------------------------------------------------------------------------------------------
BORROWER_NAME The borrower name as received in Maximum length of 30 (Last, 30
the file. It is not separated by First)
first and last name.
----------------------------------------------------------------------------------------------------------
SCHED_PAY_AMT Scheduled monthly principal and 2 No commas(,) or dollar signs 11
scheduled interest payment that a ($)
borrower is expected to pay, P&I
constant.
----------------------------------------------------------------------------------------------------------
NOTE_INT_RATE The loan interest rate as reported 4 Max length of 6 6
by the Servicer.
----------------------------------------------------------------------------------------------------------
NET_INT_RATE The loan gross interest rate less 4 Max length of 6 6
the service fee rate as reported
by the Servicer.
----------------------------------------------------------------------------------------------------------
SERV_FEE_RATE The servicer's fee rate for a loan 4 Max length of 6 6
as reported by the Servicer.
----------------------------------------------------------------------------------------------------------
SERV_FEE_AMT The servicer's fee amount for a 2 No commas(,) or dollar signs 11
loan as reported by the Servicer. ($)
----------------------------------------------------------------------------------------------------------
NEW_PAY_AMT The new loan payment amount as 2 No commas(,) or dollar signs 11
reported by the Servicer. ($)
----------------------------------------------------------------------------------------------------------
NEW_LOAN_RATE The new loan rate as reported by 4 Max length of 6 6
the Servicer.
----------------------------------------------------------------------------------------------------------
ARM_INDEX_RATE The index the Servicer is using to 4 Max length of 6 6
calculate a forecasted rate.
----------------------------------------------------------------------------------------------------------
ACTL_BEG_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar signs 11
balance at the beginning of the ($)
processing cycle.
----------------------------------------------------------------------------------------------------------
ACTL_END_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar signs 11
balance at the end of the ($)
processing cycle.
----------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date at the end of processing MM/DD/YYYY 10
cycle that the borrower's next
payment is due to the Servicer, as
reported by Servicer.
----------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_1 The first curtailment amount to be 2 No commas(,) or dollar signs 11
applied. ($)
----------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_1 The curtailment date associated MM/DD/YYYY 10
with the first curtailment amount.
----------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_1 The curtailment interest on the 2 No commas(,) or dollar signs 11
first curtailment amount, if ($)
applicable.
----------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_2 The second curtailment amount to 2 No commas(,) or dollar signs 11
be applied. ($)
----------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_2 The curtailment date associated MM/DD/YYYY 10
with the second curtailment amount.
----------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_2 The curtailment interest on the 2 No commas(,) or dollar signs 11
second curtailment amount, if ($)
applicable.
----------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_3 The third curtailment amount to be 2 No commas(,) or dollar signs 11
applied. ($)
----------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_3 The curtailment date associated MM/DD/YYYY 10
with the third curtailment amount.
----------------------------------------------------------------------------------------------------------
CURT_ADJ_AMT_3 The curtailment interest on the 2 No commas(,) or dollar signs 11
third curtailment amount, if ($)
applicable.
----------------------------------------------------------------------------------------------------------
PIF_AMT The loan "paid in full" amount as 2 No commas(,) or dollar signs 11
reported by the Servicer. ($)
----------------------------------------------------------------------------------------------------------
PIF_DATE The paid in full date as reported MM/DD/YYYY 10
by the Servicer.
----------------------------------------------------------------------------------------------------------
Action Code Key: 2
15=Bankruptcy,
30=Foreclosure,,
60=PIF,
63=Substitution,
65=Repurchase,
70=REO
ACTION_CODE The standard FNMA numeric code used
to indicate the default/delinquent]
status of a particular loan.
----------------------------------------------------------------------------------------------------------
INT_ADJ_AMT The amount of the interest 2 No commas(,) or dollar signs 11
adjustment as reported by the ($)
Servicer.
----------------------------------------------------------------------------------------------------------
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment 2 No commas(,) or dollar signs 11
amount, if applicable. ($)
----------------------------------------------------------------------------------------------------------
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, 2 No commas(,) or dollar signs 11
if applicable. ($)
----------------------------------------------------------------------------------------------------------
LOAN_LOSS_AMT The amount the Servicer is passing 2 No commas(,) or dollar signs 11
as a loss, if applicable. ($)
----------------------------------------------------------------------------------------------------------
SCHED_BEG_PRIN_BAL The scheduled outstanding 2 No commas(,) or dollar signs 11
principal amount due at the ($)
beginning of the cycle date to be
passed through to investors.
----------------------------------------------------------------------------------------------------------
SCHED_END_PRIN_BAL The scheduled principal balance 2 No commas(,) or dollar signs 11
due to investors at the end of a ($)
processing cycle.
----------------------------------------------------------------------------------------------------------
SCHED_PRIN_AMT The scheduled principal amount as 2 No commas(,) or dollar signs 11
reported by the Servicer for the ($)
current cycle -- only applicable
for Scheduled/Scheduled Loans.
----------------------------------------------------------------------------------------------------------
SCHED_NET_INT The scheduled gross interest 2 No commas(,) or dollar signs 11
amount less the service fee amount ($) for the
current cycle as reported by the Servicer -- only
applicable for Scheduled/Scheduled Loans.
----------------------------------------------------------------------------------------------------------
ACTL_PRIN_AMT The actual principal amount 2 No commas(,) or dollar signs 11
collected by the Servicer for the ($)
current reporting cycle -- only
applicable for Actual/Actual Loans.
----------------------------------------------------------------------------------------------------------
ACTL_NET_INT The actual gross interest amount 2 No commas(,) or dollar signs 11
less the service fee amount for ($) the current
reporting cycle as reported by the Servicer -- only
applicable for Actual/Actual Loans.
----------------------------------------------------------------------------------------------------------
2
PREPAY_PENALTY_ AMT The penalty amount received when a 2 No commas(,) or dollar signs 11
borrower prepays on his loan as ($)
reported by the Servicer.
----------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for 2 No commas(,) or dollar signs 11
the loan waived by the servicer. ($)
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
----------------------------------------------------------------------------------------------------------
MOD_TYPE The Modification Type. Varchar - value can be alpha 30
or numeric
----------------------------------------------------------------------------------------------------------
DELINQ_P&I_ADVANCE_AMT The current outstanding principal 2 No commas(,) or dollar signs 11
and interest advances made by ($)
Servicer.
----------------------------------------------------------------------------------------------------------
3
Exhibit IID : Calculation of Realized Loss/Gain Form 332- Instruction Sheet
NOTE: Do not net or combine items. Show all expenses individually and
all credits as separate line items. Claim packages are due on the
remittance report date. Late submissions may result in claims not being
passed until the following month. The Servicer is responsible to remit
all funds pending loss approval and /or resolution of any disputed
items.
(u)
(v) 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.
(w) 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 ( ).
5
Exhibit IIE: Calculation of Realized Loss/Gain Form 332
Prepared by: __________________ Date: _______________
Phone: ______________________ Email Address:_____________________
------------------------ -------------------------- --------------------------
Servicer Loan No. Servicer Name Servicer Address
------------------------ -------------------------- --------------------------
XXXXX FARGO BANK, N.A. Loan No._____________________________
Borrower's Name: _________________________________________________________
Property Address: ________________________________________________________
Liquidation Type: REO Sale 3rd Party Sale Short Sale Charge Off
Was this loan granted a Bankruptcy deficiency or cramdown Yes No
If "Yes", provide deficiency or cramdown amount __________________________
Liquidation and Acquisition Expenses:
(1) Actual Unpaid Principal Balance of Mortgage Loan $ ______________ (1)
(2) Interest accrued at Net Rate ________________ (2)
(3) Accrued Servicing Fees ________________ (3)
(4) Attorney's Fees ________________ (4)
(5) Taxes (see page 2) ________________ (5)
(6) Property Maintenance ________________ (6)
(7) MI/Hazard Insurance Premiums (see page 2) ________________ (7)
(8) Utility Expenses ________________ (8)
(9) Appraisal/BPO ________________ (9)
(10) Property Inspections ________________ (10)
(11) FC Costs/Other Legal Expenses ________________ (11)
(12) Other (itemize) ________________ (12)
Cash for Keys________________________ ________________ (12)
HOA/Condo Fees_______________________ ________________ (12)
_____________________________________ ________________ (12)
Total Expenses $_______________ (13)
Credits:
(14) Escrow Balance $ ______________ (14)
(15) HIP Refund ________________ (15)
(16) Rental Receipts ________________ (16)
(17) Hazard Loss Proceeds ________________ (17)
(18) Primary Mortgage Insurance / Gov't Insurance ________________ (18a)
HUD Part A
________________ (18b)
HUD Part B
6
(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)
7
Escrow Disbursement Detail
--------------------------------------------------------------------------------
Type Date Paid Period of Total Paid Base Penalties Interest
(Tax /Ins.) Coverage Amount
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
8
EXHIBIT III
REGULATION AB COMPLIANCE ADDENDUM
TO SELLER'S PURCHASE, WARRANTIES AND SERVICING AGREEMENT
WITNESSETH
WHEREAS, the Company and the Purchaser have agreed to adopt an addendum
to the Mortgage Loan Sale and Servicing Agreement dated as of August 1, 2005,
to reflect the intention of the parties to comply with Regulation AB.
NOW, THEREFORE, in consideration of the mutual promises and mutual
obligations set forth herein, the Company and the Purchaser hereby agree as
follows:
ARTICLE I
DEFINED TERMS
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Agreement. The following terms shall have the
meanings set forth below, unless the context clearly indicates otherwise:
Commission: The United States Securities and Exchange Commission.
Company Information: As defined in Section 2.07(a).
Depositor: With respect to any Securitization Transaction, the Person
identified in writing to the Company by the Purchaser as depositor for such
Securitization Transaction.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Indemnified Party: each Party described in the first sentence of Section
2.07(a) hereof.
Master Servicer: With respect to a Securitization Transaction, the
"master servicer," if any, defined in the related transaction documents.
Qualified Correspondent: Any Person from which the Company purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Company
and such Person that contemplated that such Person would underwrite mortgage
loans from time to time, for sale to the Company, in accordance with
underwriting guidelines designated by the Company ("Designated Guidelines") or
guidelines that do not vary materially from such Designated Guidelines; (ii)
such Mortgage Loans were in fact underwritten as described in clause (i) above
and were acquired by the Company within 270 days after origination; (iii)
either (x) the Designated Guidelines were, at the time such Mortgage Loans
were originated, used by the Company in origination of mortgage loans of the
same type as the Mortgage Loans for the Company's own account or (y) the
Designated Guidelines were, at the time such Mortgage Loans were underwritten,
designated by the Company on a consistent basis for use by lenders in
originating mortgage loans to be purchased by the Company; and (iv) the
Company employed, at the time such Mortgage Loans were acquired by the
Company, pre-purchase or post-purchase quality assurance procedures (which may
involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed to
ensure that Persons from which it purchased mortgage loans properly applied
the underwriting criteria designated by the Company.
Reconstitution: Any Securitization Transaction or Whole Loan Transfer.
9
Reconstitution Agreement: An agreement or agreements entered into by the
Company and the Purchaser and/or certain third parties in connection with a
Reconstitution with respect to any or all of the Mortgage Loans.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a sale
or other transfer of some or all of the Mortgage Loans directly or indirectly
by the Purchaser to an issuing entity (as defined in Regulation AB) in
connection with an issuance of publicly offered, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered, rated or
unrated securities, the payments on which are determined primarily by
reference to one or more portfolios of residential mortgage loans consisting,
in whole or in part, of some or all of the Mortgage Loans.
Servicer: As defined in Section 2.03(c).
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d)
of Regulation AB for which the Company is responsible in its capacity as
Servicer as identified on Exhibit B-1 hereto, provided that such Exhibit B-1
may be amended from time to time to reflect changes in Regulation AB.
Sponsor: With respect to any Securitization Transaction, the Person
identified in writing to the Company by the Purchaser as sponsor for such
Securitization Transaction.
Static Pool Information: Static pool information as described in Item
1l05(a)(l)-(3) and 1105(c) of Regulation AB.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood
by participants in the mortgage-backed securities market) of Mortgage Loans
pursuant to a Reconstitution Agreement but performs one or more discrete
functions identified in Item 1122(d) of Regulation AB with respect to Mortgage
Loans (serviced by the Company under a Reconstitution Agreement) under the
direction or authority of the Company or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of the
Company (as servicer under a Reconstitution Agreement) or any Subservicer and
is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing
functions required to be performed by the Company under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation AB.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Company.
Whole Loan Transfer: Any sale or transfer by the Purchaser of some or
all of the Mortgage Loans, other than a Securitization Transaction.
10
ARTICLE II
COMPLIANCE WITH REGULATION AB
Section 2.01. Intent of the Parties; Reasonableness.
The Purchaser and the Company acknowledge and agree that the purpose of
Article II of this Reg AB Addendum is to facilitate compliance by the
Purchaser and any Depositor with the provisions of Regulation AB and related
rules and regulations of the Commission, regardless whether the Mortgage Loans
were purchased by the Purchaser from the Company prior to the date hereof.
Neither the Purchaser nor any Depositor shall exercise its right to request
delivery of information or other performance under these provisions other than
in good faith, or for purposes other than compliance with the Securities Act,
the Exchange Act and the rules and regulations of the Commission thereunder.
The Company acknowledges that interpretations of the requirements of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and agrees
to comply with reasonable requests made by the Purchaser or any Depositor in
good faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection with any
Securitization Transaction, the Company shall cooperate with the Purchaser to
deliver to the Purchaser (including any of its assignees or designees) and any
Depositor, any and all statements, reports, certifications, records and any
other information necessary in the good faith determination of the Purchaser
or any Depositor to permit the Purchaser or such Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Company, any Subservicer, any Third-Party Originator and the Mortgage Loans,
or the servicing of the Mortgage Loans, reasonably believed by the Purchaser
or any Depositor to be necessary in order to effect such compliance.
The Purchaser and the Company also acknowledge and agree Section
2.02(a)(i)-(v), Section 2.03(c), (e) and (f), Section 2.04, Section 2.05 and
Section 2.06 of this Reg AB Addendum shall only be applicable with respect to
any Mortgage Loan if the Company (or Subservicer, if any) services such
Mortgage Loan following the closing date of a related Securitization
Transaction. The Purchaser and the Company also acknowledge and agree that
this Reg AB Addendum is intended to supplement the terms of the Agreement and,
to the extent inconsistent, the rights and obligations under the Agreement
shall continue to apply with respect to any Reconstitution (as defined in the
Agreement) that is not covered by the definition of "Securitization
Transaction" in this Reg AB Addendum; provided, however, that the requirement
to provide an accountants' report pursuant to Section 6.05 of the Agreement
shall be deemed satisfied with respect to any Reconstitution that occurs on or
following the date hereof by providing an accountants' attestation that
satisfies the requirements of Section 2.05(a)(ii) of this Reg AB Addendum.
For purposes of this Reg AB Addendum, the term "Purchaser" shall refer
to Xxxxxx Xxxxxxx Mortgage Capital Inc. and its successors in interest and
assigns. In addition, any notice or request that must be "in writing" or
"written" may be made by electronic mail.
For the purposes of clarification, the covenants of this Regulation AB
Compliance Addendum are applicable only with respect to the Specified Mortgage
Loans.
Section 2.02. Additional Representations and Warranties of the Company.
(a) The Company shall be deemed to represent to the Purchaser and to any
Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Section 2.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) the Company
is not aware and has not received notice that any default, early amortization
or other performance triggering event with respect to the Company has occurred
as to any other securitization due to any act or failure to act of the
Company; (ii) the Company has not been terminated as servicer in a residential
mortgage loan securitization, either due to a servicing default or to
application of a servicing performance test or trigger; (iii) no material
noncompliance with the applicable Servicing Criteria with respect to other
securitizations of residential mortgage loans involving the Company as
servicer has been disclosed or reported by the Company; (iv) no material
changes to the Company's policies or procedures with respect to the servicing
function it will perform under this Agreement and any Reconstitution Agreement
for mortgage loans of a type similar to the Mortgage Loans have occurred
during the three-year period immediately
11
preceding the related Securitization Transaction; (v) there are no aspects of
the Company's financial condition that are reasonably expected to have a
material adverse effect on the performance by the Company of its servicing
obligations under this Agreement or any Reconstitution Agreement; (vi) there
are no material legal or governmental proceedings of a type identified in Item
1117 of Regulation AB pending (or known to be contemplated) against the
Company, any Subservicer or any Third-Party Originator; and (vii) there are no
affiliations, relationships or transactions relating to the Company, any
Subservicer or any Third-Party Originator with respect to any Securitization
Transaction and any party thereto identified in writing to the Company by the
related Depositor of a type described in Item 1119 of Regulation AB.
The Company hereby represents and warrants that it is unable without
unreasonable effort or expense to provide (i) Static Pool Information with
respect to mortgage loans that the Company has sold on a servicing-released
basis, other than such information as relates to "original characteristics" as
described in Item 1105(a)(3)(iii) of Regulation AB and (ii) Static Pool
Information regarding cumulative losses with respect to any mortgage loans
originated prior to January 1, 2006.
(b) If so requested in writing by the Purchaser or any Depositor on
any date following the date on which information is first provided to the
Purchaser or any Depositor under Section 2.03, the Company shall use its
reasonable best efforts to within five (5) Business Days, but in no event
later than ten (10) Business Days, following such request confirm in writing
the accuracy of the representations and warranties set forth in paragraph (a)
of this Section or, if any such representation and warranty is not accurate as
of the date of such request, provide reasonably adequate disclosure of the
pertinent facts, in writing, to the requesting party.
Section 2.03. Information to Be Provided by the Company.
-----------------------------------------
In connection with any Securitization Transaction, the Company shall use
its reasonable best efforts to (i) within five (5) Business Days, but in no
event later than ten (10) Business Days, following written request by the
Purchaser or any Depositor, provide to the Purchaser and such Depositor (or,
as applicable, cause each Third-Party Originator and each Subservicer to
provide), in writing and in form and substance reasonably satisfactory to the
Purchaser and such Depositor, the information and materials specified in
paragraphs (a), (b), (c) and (f) of this Section, and (ii) as promptly as
practicable following notice to or discovery by the Company, provide to the
Purchaser and any Depositor (in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor) the information specified in
paragraph (d) of this Section.
(a) If so requested in writing by the Purchaser or any Depositor, the
Company shall provide such information regarding (i) the Company, as
originator of the Mortgage Loans (including as an acquirer of Mortgage Loans
from a Qualified Correspondent), or (ii) each Third-Party Originator, and
(iii) as applicable, each Subservicer, as is reasonably requested for the
purpose of compliance with Items 1103(a)(l), 1105, 1110, 1117 and 1119 of
Regulation AB. Such information shall include, at a minimum (so long as
required by Regulation AB):
(A) the originator's form of organization;
(B) a description of the originator's origination program and how
long the originator has been engaged in originating residential mortgage
loans, which description shall include a discussion of the originator's
experience in originating mortgage loans of a similar type as the
Mortgage Loans; information regarding the size and composition of the
originator's origination portfolio; and information that may be
material, in the good faith judgment of the Purchaser or any Depositor,
to an analysis of the performance of the Mortgage Loans, including the
originators' credit-granting or underwriting criteria for mortgage loans
of similar type(s) as the Mortgage Loans and such other information as
the Purchaser or any Depositor may reasonably request for the purpose of
compliance with Item 1110(b)(2) of Regulation AB;
(C) a description of any legal or governmental proceedings of a
type described in Item 1117 of Regulation AB pending (or known to be
contemplated) against the Company, each Third-Party Originator and each
Subservicer that would be material to securityholders; and
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(D) a description of any affiliation or relationship of a type
described in Item 1119 of Regulation AB between the Company, each
Third-Party Originator, each Subservicer and any of the following
parties to a Securitization Transaction, as such parties are identified
to the Company by the Purchaser or any Depositor in writing in advance
of such Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) If so requested in writing by the Purchaser or any Depositor, the
Company shall provide (or, as applicable, cause each Third-Party Originator to
provide) Static Pool Information with respect to mortgage loans of a similar
type as the Mortgage Loans (as reasonably identified by the Purchaser as
provided below) originated by (i) the Company, if the Company is an originator
of Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), and/or (ii) each Third-Party Originator, but in each case only
to the extent that (x) such mortgage loans were originated after July 2004 and
(y) (A) the Company has not sold such mortgage loans on a servicing-released
basis or (B) such information relates to "original characteristics" as
described in Item 1105(a)(3)(iii) of Regulation AB. Notwithstanding the
preceding sentence, the Company shall not be required to provide Static Pool
Information regarding cumulative losses with respect to any mortgage loans
originated prior to January 1, 2006. Such Static Pool Information shall be
prepared by the Company (or Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item
1105(a)(2)-(3) of Regulation AB. To the extent that there is reasonably
available to the Company (or Third-Party Originator) Static Pool Information
with respect to more than one mortgage loan type, the Purchaser or any
Depositor shall be entitled to specify whether some or all of such information
shall be provided pursuant to this paragraph. The content of such Static Pool
Information may be in the form customarily provided by the Company, and need
not be customized for the Purchaser or any Depositor, except for such changes
as the Purchaser shall reasonably request to the extent necessary to comply
with Regulation AB. Such Static Pool Information for each vintage origination
year shall be presented in increments no less frequently than quarterly over
the life of the mortgage loans included in the vintage origination year or
prior securitized pool. The most recent periodic increment must be as of a
date no later than 135 days prior to the date of the prospectus or other
offering document in which the Static Pool Information is to be included or
incorporated by reference. The Static Pool Information shall be provided in an
electronic format that provides a permanent record of the information
provided, such as a portable document format (pdf) file, or other such
electronic format reasonably required by the Purchaser or the Depositor, as
applicable.
Promptly following notice or discovery of a material error in Static
Pool Information provided pursuant to the immediately preceding paragraph
(including an omission to include therein information required to be provided
pursuant to such paragraph), the Company shall provide corrected Static Pool
Information to the Purchaser or any Depositor, as applicable, in the same
format in which Static Pool Information was previously provided to such party
by the Company, subject to such time limits as mutually agreed to by the
Company and the Purchaser or the Depositor, as applicable.
If so requested in writing by the Purchaser or any Depositor, the
Company shall provide (or, as applicable, cause each Third-Party Originator to
provide), at the expense of the requesting party (to the extent of any
additional incremental expense associated with delivery pursuant to this Reg
AB Addendum), such statements and agreed-upon procedures letters of certified
public accountants reasonably acceptable to the Purchaser or Depositor, as
applicable, pertaining to Static Pool Information relating to prior
securitized pools for securitizations closed on or after January 1, 2006 or,
in the case of Static Pool Information with respect to the Company's or Third
Party Originator's 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
13
Transaction. Any such statement or letter may take the form of a standard,
generally applicable document accompanied by a reliance letter authorizing
reliance by the addressees designated by the Purchaser or such Depositor.
(c) If so requested in writing by the Purchaser or any Depositor with
respect to any Securitization Transaction for which 20% or more of the pool
assets (measured by cut-off date principal balance) are serviced by the
Company and any Subservicer, the Company shall provide such information
regarding the Company, as servicer of the Mortgage Loans, and each Subservicer
(each of the Company and each Subservicer, for purposes of this paragraph, a
"Servicer"), as is reasonably requested for the purpose of compliance with
Item 1108 of Regulation AB. Such information shall include, at a minimum (so
long as required by Regulation AB):
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been servicing
residential mortgage loans; a general discussion of the Servicer's
experience in servicing assets of any type as well as a more detailed
discussion of the Servicer's experience in, and procedures for, the
servicing function it will perform under the Agreement and any
Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer's portfolio of residential mortgage loans of
a type similar to the Mortgage Loans and information on factors related
to the Servicer that may be material, in the good faith judgment of the
Purchaser or any Depositor, to any analysis of the servicing of the
Mortgage Loans or the related asset-backed securities, as applicable,
including, without limitation:
(1) whether any prior securitizations of mortgage loans of a
type similar to the Mortgage Loans involving the Servicer have
defaulted or experienced an early amortization or other
performance triggering event because of servicing during the
three-year period immediately preceding the related Securitization
Transaction;
(2) the extent of outsourcing the Servicer utilizes;
(3) whether there has been previous disclosure of material
noncompliance with the applicable servicing criteria with respect
to other securitizations of residential mortgage loans involving
the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
(4) whether the Servicer has been terminated as servicer in
a residential mortgage loan securitization, either due to a
servicing default or to application of a servicing performance
test or trigger; and
(5) such other information as the Purchaser or any Depositor
may reasonably request for the purpose of compliance with Item
1108(b)(2) of Regulation AB;
(C) a description of any material changes during the three-year
period immediately preceding the related Securitization Transaction to
the Servicer's policies or procedures with respect to the servicing
function it will perform under the Agreement and any Reconstitution
Agreements for mortgage loans of a type similar to the Mortgage Loans;
(D) information regarding the Servicer's financial condition, to
the extent that there is a material risk that an adverse financial event
or circumstance involving the Servicer could have a material adverse
effect on the performance by the Company of its servicing obligations
under the Agreement or any Reconstitution Agreement;
(E) information regarding advances made by the Servicer on the
Mortgage Loans and the Servicer's overall servicing portfolio of
residential mortgage loans for the three-year period immediately
preceding the related Securitization Transaction, which may be limited
to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on
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residential mortgage loans serviced by it during such period, or, if
such statement would not be accurate, information regarding the
percentage and type of advances not made as required, and the reasons
for such failure to advance;
(F) a description of the Servicer's processes and procedures
designed to address any special or unique factors involved in servicing
loans of a similar type as the Mortgage Loans;
(G) a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as through
liquidation of mortgaged properties, sale of defaulted mortgage loans or
workouts; and
(H) information as to how the Servicer defines or determines
delinquencies and charge-offs, including the effect of any grace period,
re-aging, restructuring, partial payments considered current or other
practices with respect to delinquency and loss experience.
(d) For the purpose of satisfying the reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, the Company
shall (or shall cause each Subservicer and Third-Party Originator to) (i)
promptly provide written notice substantially in the form of Exhibit C-1 to
the Purchaser and any Depositor of (A) any material litigation or governmental
proceedings of a type described in Item 1117 of Regulation AB pending against
the Company, any Subservicer or any Third-Party Originator, (B) any
affiliations or relationships of a type described in Item 1119 of Regulation
AB that develop following the closing date of a Securitization Transaction
between the Company, any Subservicer or any Third-Party Originator and any of
the parties specified in clause (D) of paragraph (a) of this Section (and any
other parties identified in writing by the requesting party) with respect to
such Securitization Transaction, (C) any Event of Default under the terms of
this Agreement or any Reconstitution Agreement, (D) any merger, consolidation
or sale of substantially all of the assets of the Company and (E) the
Company's entry into an agreement with a Subcontractor to perform or assist
the Company with the performance of any of the Company's obligations under
this Agreement or any Reconstitution Agreement and (ii) provide to the
Purchaser and any Depositor a description of such proceedings, affiliations or
relationships.
(e) As a condition to the succession to the Company or any Subservicer
as servicer or subservicer under the Agreement or any Reconstitution Agreement
by any Person (i) into which the Company or such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Company or
any Subservicer, the Company shall provide to the Purchaser and any Depositor,
at least 15 calendar days prior to the effective date of such succession or
appointment, (x) written notice substantially in the form of Exhibit C-1 to
the Purchaser, any Master Servicer and any Depositor of such succession or
appointment and (y) in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor, all information reasonably
requested in writing by the Purchaser or any Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to any class
of asset-backed securities.
(f) In addition to such information as the Company, as servicer, is
obligated to provide pursuant to other provisions of this Agreement, not later
than ten (10) days prior to the deadline for the filing of any distribution
report on Form 10-D in respect of any Securitization Transaction that includes
any of the Mortgage Loans serviced by the Company or any Subservicer, the
Company or such Subservicer, as applicable, shall, to the extent the Company
or such Subservicer has knowledge, provide to the party responsible for filing
such report (including, if applicable, the Master Servicer) notice
substantially in the form of Exhibit C-1 of the occurrence of any of the
following events along with all information, data, and materials related
thereto as may be required to be included in the related distribution report
on Form 10-D (as specified in the provisions of Regulation AB referenced
below):
(i) any material modifications, extensions or waivers of any
terms, fees, penalties or payments during the distribution period or
that have cumulatively become material over time with respect to the
Specified Mortgage Loans (Item 1121(a)(11) of Regulation AB);
(ii) material breaches of pool asset representations or warranties
or transaction covenants with respect to the Specified Mortgage Loans
(Item 1121(a)(12) of Regulation AB); and
15
(iii) information regarding changes to any Mortgage Loans serviced
by the Company or its Subservicers (such as, additions, substitutions or
repurchases), and any material changes in origination, underwriting or
other criteria for acquisition or selection of pool assets as it relates
to a substitution (Item 1121(a)(14) of Regulation AB).
(g) The Company shall provide to the Purchaser, any Master Servicer
and any Depositor, evidence of the authorization of the person signing any
certification and, no more than once a year, copies or other evidence of
Fidelity Bond Insurance and Errors and Omission Insurance Policy, financial
information and reports, and such other information related to the Company or
any Subservicer or the Company or such Subservicer's performance hereunder as
may be reasonably requested by the Purchaser, any Master Servicer or any
Depositor, which items may be accepted in the forms acceptable to the
Company's and Subservicer's regulators or the agencies.
Section 2.04. Servicer Compliance Statement.
On or before March 15 of each calendar year, commencing in 2007, the
Company shall deliver to the Purchaser, any Master Servicer and any Depositor
a statement of compliance addressed to the Purchaser, such Master Servicer and
such Depositor and signed by an authorized officer of the Company, to the
effect that (i) a review of the Company's activities during the immediately
preceding calendar year (or applicable portion thereof) and of its performance
under the Agreement and any applicable Reconstitution Agreement during such
period has been made under such officer's supervision, and (ii) to the best of
such officers' knowledge, based on such review, the Company has fulfilled all
of its obligations under the Agreement and any applicable Reconstitution
Agreement in all material respects throughout such calendar year (or
applicable portion thereof) or, if there has been a failure to fulfill any
such obligation in any material respect, specifically identifying each such
failure known to such officer and the nature and the status thereof.
Section 2.05. Report on Assessment of Compliance and Attestation.
(a) On or before March 15 of each calendar year, commencing in 2007,
the Company shall:
(i) deliver to the Purchaser, any Master Servicer and any
Depositor a report (in form and substance reasonably satisfactory to the
Purchaser, such Master Servicer and such Depositor; provided, however,
that such report may be in the form customarily provided by the Company,
and need not be customized for the Purchaser or such Depositor)
regarding the Company's assessment of compliance with the Servicing
Criteria during the immediately preceding calendar year, as required
under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB. Such report shall be addressed to the Purchaser and such
Depositor and signed by an authorized officer of the Company, and shall
address each of the Servicing Criteria specified on Exhibit B-1 hereto
delivered to the Purchaser concurrently with the execution of this Reg
AB Addendum;
(ii) deliver to the Purchaser, any Master Servicer and any
Depositor a report of a registered public accounting firm reasonably
acceptable to the Purchaser, such Master Servicer and such Depositor
that attests to, and reports on, the assessment of compliance made by
the Company and delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act;
(iii) cause each Subservicer, and each Subcontractor determined by
the Company pursuant to Section 2.06(b) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB,
(each, a "Participating Entity") to deliver to the Purchaser, any Master
Servicer and any Depositor an assessment of compliance and accountants'
attestation as and when provided in paragraphs (a) and (b) of this
Section; and
(iv) deliver, and cause each Subservicer and Subcontractor
described in clause (iii) above, to deliver to the Purchaser, any Master
Servicer, any Depositor and any other Person that will be responsible
16
for signing the certification (a "Sarbanes Certification") required by
Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an
asset-backed issuer with respect to a Securitization Transaction a
certification, signed by an appropriate officer of the Company, in the
form attached hereto as Exhibit A-1
The Company acknowledges that the parties identified in clause (a)(iv) above
may rely on the certification provided by the Company pursuant to such clause
in signing a Sarbanes Certification and filing such with the Commission. In
addition to providing the Sarbanes Certification, the Servicer shall also
cooperate with the Depositor and provide such additional information as the
Depositor may reasonably request with respect thereto.
(b) Each assessment of compliance provided by a Subservicer pursuant
to Section 2.05(a)(iii) shall address each of the Servicing Criteria specified
on a certification substantially in the form of Exhibit B-1 hereto delivered
to the Purchaser concurrently with the execution of this Reg AB Addendum or,
in the case of a Subservicer subsequently appointed as such, on or prior to
the date of such appointment. An assessment of compliance provided by a
Subcontractor pursuant to Section 2.05(a)(iii) need not address any elements
of the Servicing Criteria other than those specified by the Company pursuant
to Section 2.06.
Section 2.06. Use of Subservicers and Subcontractors.
The Company shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Company as servicer under
the Agreement or any Reconstitution Agreement unless the Company complies with
the provisions of paragraph (a) of this Section. The Company shall not hire or
otherwise utilize the services of any Subcontractor, and shall not authorize
any Subservicer to hire or otherwise utilize the services of any
Subcontractor, to fulfill any of the obligations of the Company as servicer
under the Agreement or any Reconstitution Agreement unless the Company
complies with the provisions of paragraph (b) of this Section.
(a) It shall not be necessary for the Company to seek the consent of
the Purchaser, any Master Servicer or any Depositor to the utilization of any
Subservicer. The Company shall cause any Subservicer used by the Company (or
by any Subservicer) for the benefit of the Purchaser and any Depositor to
comply with the provisions of this Section and with Sections 2.02, 2.03(c),
(e), (f) and (g), 2.04, 2.05 and 2.07 of this Agreement to the same extent as
if such Subservicer were the Company, and to provide the information required
with respect to such Subservicer under Section 2.03(d) of this Agreement. The
Company shall be responsible for obtaining from each Subservicer and
delivering to the Purchaser and any Depositor any servicer compliance
statement required to be delivered by such Subservicer under Section 2.04, any
assessment of compliance and attestation required to be delivered by such
Subservicer under Section 2.05 and any certification required to be delivered
to the Person that will be responsible for signing the Sarbanes Certification
under Section 2.05 as and when required to be delivered. For the purposes of
clarification, the covenants of this clause (i) are applicable only with
respect to those Mortgage Loans being securitized in a Securitization
Transaction pursuant to which the Company has entered into a Reconstitution
Agreement..
(b) It shall not be necessary for the Company to seek the consent of
the Purchaser, any Master Servicer or any Depositor to the utilization of any
Subcontractor. The Company shall within five (5) days of a request therefor
provide to the Purchaser, any Master Servicer and any Depositor (or any
designee of the Depositor, such as a master servicer or administrator) a
written description (in form and substance satisfactory to the Purchaser, such
Master Servicer and such Depositor) of the role and function of each
Subcontractor utilized by the Company or any Subservicer, specifying (A) the
identity of each such Subcontractor, (B) which (if any) of such Subcontractors
are "participating in the servicing function" within the meaning of Item 1122
of Regulation AB and (C) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor
identified pursuant to clause (B) of this paragraph.
As a condition to the utilization of any Subcontractor determined to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Company shall cause any such Subcontractor used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 2.05 and 2.07 of this Reg
AB Addendum to the same extent as if such Subcontractor were the Company. The
Company shall be responsible for obtaining from each Subcontractor and
delivering to the Purchaser and any Depositor any assessment of compliance and
attestation and the other certifications required to be delivered
17
by such Subservicer and Subcontractor under Section 2.05, in each case as and
when required to be delivered. For the purposes of clarification, the
covenants of this clause (b) are applicable only with respect to those
Mortgage Loans being securitized in a Securitization Transaction pursuant to
which the Company has entered into a Reconstitution Agreement.
Section 2.07. Indemnification; Remedies.
(a) The Company shall indemnify the Purchaser, each affiliate of the
Purchaser, and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person (including but not
limited to any Master Servicer) responsible for the preparation, execution or
filing of any report required to be filed with the Commission with respect to
such Securitization Transaction, or for execution of a certification pursuant
to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to
such Securitization Transaction; each broker dealer acting as underwriter,
placement agent or initial purchaser, each Person who controls any of such
parties or the Depositor (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees, agents and affiliates of each of the foregoing
and of the Depositor (each, an "Indemnified Party"), and shall hold each of
them harmless from and against any claims, losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any
other costs, fees and expenses that any of them may sustain arising out of or
based upon:
(i) (A) any untrue statement of a material fact contained or
alleged to be contained in any information, report, certification,
accountants' letter or other material provided under this Article II by
or on behalf of the Company, or provided under this Article II by or on
behalf of any Subservicer, Subcontractor or Third-Party Originator
(collectively, the "Company Information"), or (B) the omission or
alleged omission to state in the Company Information a material fact
required to be stated in the Company Information or necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, by way of clarification,
that clause (B) of this paragraph shall be construed solely by reference
to the Company Information and not to any other information communicated
in connection with a sale or purchase of securities, without regard to
whether the Company Information or any portion thereof is presented
together with or separately from such other information;
(ii) any breach by the Company under this Article II, including
particularly any failure by the Company, any Subservicer, any
Subcontractor or any Third-Party Originator to deliver any information,
report, certification, accountants' letter or other material when and as
required under this Article II, including any failure by the Company to
identify pursuant to Section 2.06(b) any Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation
AB; or
(iii) any breach by the Company of a representation or warranty
set forth in Section 2.02(a) or in a writing furnished pursuant to
Section 2.02(b) and made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that such breach is
not cured by such closing date, or any breach by the Company of a
representation or warranty in a writing furnished pursuant to Section
2.02(b) to the extent made as of a date subsequent to such closing date;
or
(iv) negligence, bad faith or willful misconduct of the Company in
connection with its performance under this Article II.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless an Indemnified Party, then the Company agrees
that it shall contribute to the amount paid or payable by such Indemnified
Party as a result of any claims, losses, damages or liabilities incurred by
such Indemnified Party in such proportion as is appropriate to reflect the
relative fault of such Indemnified Party on the one hand and the Company on
the other
In the case of any failure of performance described in clause (a)(ii) of
this Section, the Company shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the preparation,
18
execution or filing of any report required to be filed with the Commission
with respect to such Securitization Transaction, or for execution of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Securitization Transaction, for all costs reasonably
incurred by each such party in order to obtain the information, report,
certification, accountants' letter or other material not delivered as required
by the Company, any Subservicer, any Subcontractor or any Third-Party
Originator.
This indemnification shall survive the termination of this Agreement or
the termination of any party to this Agreement.
(b) (i) Any failure by the Company, any Subservicer, any Subcontractor
or any Third-Party Originator to deliver any information, report,
certification, accountants' letter or other material when and as required
under this Article II, or any breach by the Company of a representation or
warranty set forth in Section 2.02(a) or in a writing furnished pursuant to
Section 2.02(b) and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not cured by
such closing date, or any breach by the Company of a representation or
warranty in a writing furnished pursuant to Section 2.02(b) to the extent made
as of a date subsequent to such closing date, shall, except as provided in
clause (ii) of this paragraph, immediately and automatically, without notice
or grace period, constitute an Event of Default with respect to the Company
under the Agreement and any applicable Reconstitution Agreement, and shall
entitle the Purchaser or Depositor, as applicable, in its sole discretion to
terminate the rights and obligations of the Company as servicer under the
Agreement and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement or any applicable Reconstitution
Agreement to the contrary) of any compensation to the Company (and if the
Company is servicing any of the Mortgage Loans in a Securitization
Transaction, appoint a successor servicer reasonably acceptable to the Master
Servicer for such Securitization Transaction); provided that to the extent
that any provision of the Agreement and/or any applicable Reconstitution
Agreement expressly provides for the survival of certain rights or obligations
following termination of the Company as servicer, such provision shall be
given effect.
(ii) Any failure by the Company, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Section 2.04 or 2.05,
including any failure by the Company to identify pursuant to Section
2.06(b) any Subcontractor "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB shall constitute an
Event of Default with respect to the Company under the Agreement and any
applicable Reconstitution Agreement, and shall entitle the Purchaser,
any Master Servicer or the Depositor, as applicable, in its sole
discretion to terminate the rights and obligations of the Company as
servicer under the Agreement and/or any applicable Reconstitution
Agreement without payment (notwithstanding anything in this Agreement to
the contrary) of any compensation to the Company; provided that to the
extent that any provision of the Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain
rights or obligations following termination of the Company as servicer,
such provision shall be given effect.
Neither the Purchaser nor any Depositor shall be entitled to
terminate the rights and obligations of the Company pursuant to this
subparagraph (ii)(B) if a failure of the Company to identify a
Subcontractor "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB was attributable solely to the
role or functions of such Subcontractor with respect to mortgage loans
other than the Mortgage Loans
(iii) The Company shall promptly reimburse the Purchaser (or any
designee of the Purchaser, such as a master servicer) and any Depositor,
as applicable, for all reasonable expenses incurred by the Purchaser (or
such designee) or such Depositor, as such are incurred, in connection
with the termination of the Company as servicer and the transfer of
servicing of the Mortgage Loans to a successor servicer. The provisions
of this paragraph shall not limit whatever rights the Purchaser or any
Depositor may have under other provisions of the Agreement and/or any
applicable Reconstitution Agreement or otherwise, whether in equity or
at law, such as an action for damages, specific performance or
injunctive relief.
Section 2.08: Additional Provisions
(a) References in this Exhibit Reg AB to "this Agreement" or words of
similar import (including indirect references to the Agreement) shall be
deemed to be references to the Existing Agreement as amended by
19
this Exhibit Reg AB. Except as expressly amended and modified by this Exhibit
Reg AB, the Agreement shall continue to be, and shall remain, in full force
and effect in accordance with its terms. In the event of a conflict between
this Exhibit Reg AB and any other document or agreement, including without
limitation the Existing Agreement, this Exhibit Reg AB shall control.
(b) This Exhibit Reg AB shall be construed in accordance with the laws
of the State of New York without regard to any conflicts of law provisions and
the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with the laws of the State of New York, except to the
extent preempted by Federal law.
(c) This Exhibit Reg AB shall bind and inure to the benefit of and be
enforceable by the Company and the Purchaser and the respective successors and
assigns of the Company and the Purchaser.
20
EXHIBIT A-1
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the
"Agreement"), among [IDENTIFY PARTIES]
I, ________________________________, the _____________________ of HSBC
Mortgage Corporation (USA), certify to [the Purchaser], [the Depositor], and
the [Master Servicer] [Securities Administrator] [Trustee], and their
officers, with the knowledge and intent that they will rely upon this
certification, that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Company's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB and identified
as the responsibility of the Company on Exhibit B-1 to the Regulation AB
Compliance Addendum to the Agreement (the "Servicing Criteria"), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the "Exchange Act") and Item 1122 of Regulation AB (the "Servicing
Assessment"), the registered public accounting firm's attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act and
Section 1122(b) of Regulation AB (the "Attestation Report"), and all servicing
reports, officer's certificates and other information relating to the
servicing of the Mortgage Loans by the Company during 200[ ] that were
delivered by the Company to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the "Company
Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light of
the circumstances under which such statements were made, not misleading with
respect to the period of time covered by the Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information required
to be provided by the Company under the Agreement has been provided to the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee];
(4) I am responsible for reviewing the activities performed by the Company
as servicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Compliance Statement, the Servicing Assessment or the Attestation
Report, the Company has fulfilled its obligations under the Agreement in all
material respects; and
(5) The Compliance Statement required to be delivered by the Company
pursuant to the Agreement, and the Servicing Assessment and Attestation Report
required to be provided by the Company and by any Subservicer and
Subcontractor pursuant to the Agreement, have been provided to the [Depositor]
[Master Servicer]. Any material instances of noncompliance described in such
reports have been disclosed to the [Depositor] [Master Servicer]. Any material
instance of noncompliance with the Servicing Criteria has been disclosed in
such reports.
Date: _____________________________________
By: _____________________________________
Name:
Title:
21
EXHIBIT B-1
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria";
--------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
--------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------
General Servicing Considerations
--------------------------------------------------------------------------------
Policies and procedures are instituted to monitor
any performance or other triggers and events of X
default in accordance with the transaction
1122(d)(1)(i) agreements.
--------------------------------------------------------------------------------
If any material servicing activities are
outsourced to third parties, policies and
procedures are instituted to monitor the third X
party's performance and compliance with such
servicing activities.
1122(d)(1)(ii)
--------------------------------------------------------------------------------
Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans
are maintained.
1122(d)(1)(iii)
--------------------------------------------------------------------------------
A fidelity bond and errors and omissions policy
is in effect on the party participating in the
servicing function throughout the reporting period X
in the amount of coverage required by and otherwise
in accordance with the terms of the transaction
agreements.
1122(d)(1)(iv)
--------------------------------------------------------------------------------
Cash Collection and Administration
--------------------------------------------------------------------------------
Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related
bank clearing accounts no more than two business X
days following receipt, or such other number of
days specified in the transaction agreements.
1122(d)(2)(i)
--------------------------------------------------------------------------------
Disbursements made via wire transfer on behalf of
an obligor or to an investor are made only by X
authorized personnel.
1122(d)(2)(ii)
--------------------------------------------------------------------------------
Advances of funds or guarantees regarding
collections, cash flows or distributions, and any
interest or other fees charged for such advances, X
are made, reviewed and approved as specified in
the transaction agreements.
1122(d)(2)(iii)
--------------------------------------------------------------------------------
The related accounts for the transaction, such as
cash reserve accounts or accounts established as a
form of overcollateralization, are separately X
maintained (e.g., with respect to commingling of
cash) as set forth in the transaction agreements.
1122(d)(2)(iv)
--------------------------------------------------------------------------------
22
--------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
--------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------
Each custodial account is maintained at a
federally insured depository institution as set
forth in the transaction agreements. For purposes
of this criterion, "federally insured depository X
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)(v)
--------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent X
unauthorized access.
--------------------------------------------------------------------------------
Reconciliations are prepared on a monthly basis
for all asset-backed securities related bank
accounts, including custodial accounts and related
bank clearing accounts. These reconciliations are
(A) mathematically accurate; (B) prepared within
30 calendar days after the bank statement cutoff
date, or such other number of days specified in X
the transaction agreements; (C) reviewed and
approved by someone other than the person who
prepared the reconciliation; and (D) contain
explanations for reconciling items. These
reconciling items are resolved within 90 calendar
days of their original identification, or such
other number of days specified in the transaction
agreements.
1122(d)(2)(vii)
--------------------------------------------------------------------------------
Investor Remittances and Reporting
--------------------------------------------------------------------------------
Reports to investors, including those to be filed
with the Commission, are maintained in
accordance with the transaction agreements and
applicable Commission requirements. Specifically,
such reports (A) are prepared in accordance with
timeframes and other terms set forth in the
transaction agreements; (B) provide information X
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)(i)
--------------------------------------------------------------------------------
Amounts due to investors are allocated and
remitted in accordance with timeframes,
distribution priority and other terms set forth in X
the transaction agreements.
1122(d)(3)(ii)
--------------------------------------------------------------------------------
Disbursements made to an investor are posted
within two business days to the Servicer's
investor records, or such other number of days X
specified in the transaction agreements.
1122(d)(3)(iii)
--------------------------------------------------------------------------------
Amounts remitted to investors per the investor
reports agree with cancelled checks, or other X
form of payment, or custodial bank statements.
1122(d)(3)(iv)
--------------------------------------------------------------------------------
Pool Asset Administration
--------------------------------------------------------------------------------
23
--------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
--------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------
Collateral or security on mortgage loans is
maintained as required by the transaction X
agreements or related mortgage loan documents.
1122(d)(4)(i)
--------------------------------------------------------------------------------
Mortgage loan and related documents are
safeguarded as required by the transaction X
agreements
1122(d)(4)(ii)
--------------------------------------------------------------------------------
Any additions, removals or substitutions to the
asset pool are made, reviewed and approved in
accordance with any conditions or requirements in X
the transaction agreements.
1122(d)(4)(iii)
--------------------------------------------------------------------------------
Payments on mortgage loans, including any
payoffs, made in accordance with the related
mortgage loan documents are posted to the
Servicer's obligor records maintained no more than
two business days after receipt, or such other X
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)(iv)
--------------------------------------------------------------------------------
The Servicer's records regarding the mortgage
loans agree with the Servicer's records with X
respect to an obligor's unpaid principal balance.
1122(d)(4)(v)
--------------------------------------------------------------------------------
Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan
modifications or re-agings) are made, reviewed and X
approved by authorized personnel in accordance
with the transaction agreements and related pool
asset documents.
1122(d)(4)(vi)
--------------------------------------------------------------------------------
Loss mitigation or recovery actions (e.g.,
forbearance plans, modifications and deeds in lieu
of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded X
in accordance with the timeframes or other
requirements established by the transaction
agreements.
1122(d)(4)(vii)
--------------------------------------------------------------------------------
Records documenting collection efforts are
maintained during the period a mortgage loan is
delinquent in accordance with the transaction
agreements. Such records are maintained on at
least a monthly basis, or such other period
specified in the transaction agreements, and X
describe the entity's activities in monitoring
delinquent mortgage loans including, for example,
phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
1122(d)(4)(viii)
--------------------------------------------------------------------------------
Adjustments to interest rates or rates of return
for mortgage loans with variable rates are
computed based on the related mortgage loan X
documents.
1122( d)( 4)(ix)
--------------------------------------------------------------------------------
24
--------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
--------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------
Regarding any funds held in trust for an obligor
(such as escrow accounts): (A) such funds are
analyzed, in accordance with the obligor's
mortgage loan documents, on at least an annual
basis, or such other period specified in the
transaction agreements; (B) interest on such funds X
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)(x)
--------------------------------------------------------------------------------
Payments made on behalf of an obligor (such as
tax or insurance payments) are made on or before
the related penalty or expiration dates, as
indicated on the appropriate bills or notices for X
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)(xi)
--------------------------------------------------------------------------------
Any late payment penalties in connection with any
payment to be made on behalf of an obligor are
paid from the servicer's funds and not charged to X
the obligor, unless the late payment was due to
the obligor's error or omission.
1122(d)(4)(xii)
--------------------------------------------------------------------------------
Disbursements made on behalf of an obligor are
posted within two business days to the obligor's
records maintained by the servicer, or such other X
number of days specified in the transaction
agreements.
1122(d)(4)(xiii)
--------------------------------------------------------------------------------
Delinquencies, charge-offs and uncollectible
accounts are recognized and recorded in accordance X
with the transaction agreements.
1122(d)(4)(xiv)
--------------------------------------------------------------------------------
Any external enhancement or other support,
identified in Item 1114(a)(1) through (3) or Item
1115 of Regulation AB, is maintained as set forth
in the transaction agreements.
1122(d)(4)(xv)
--------------------------------------------------------------------------------
25
[HSBC MORTGAGE CORPORATION (USA)]
[NAME OF SUBSERVICER]
Date: _____________________________________
By: _____________________________________
Name:
Title:
26
EXHIBIT C-1
Additional Disclosure Notification
Xxxxx Fargo Bank, N.A. as [Securities Administrator and Master Servicer]
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn: Corporate Trust Services - MSM 2006-5AR - SEC REPORT PROCESSING
RE: **Additional Form [ ] Disclosure**Required
Ladies and Gentlemen:
In accordance with Section [2.03(d)][2.03(e)][2.03(f)] of Schedule III,
Article II of the Assignment, Assumption and Recognition Agreement, dated as
of March 1, 2006, among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, HSBC
Mortgage Corporation (USA), Xxxxx Fargo Bank, National Association, as Master
Servicer, and LaSalle Bank National Association as Trustee. The Undersigned
hereby notifies you that certain events have come to our attention that [will]
[may] need to be disclosed on Form [ ].
Description of Additional Form [ ] Disclosure:
List of Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any inquiries related to this notification should be directed to [ ],
phone number: [ ]; email address: [ ].
[NAME OF PARTY]
as [role]
By: __________________
Name:
Title:
27
