Exhibit 99.11a
EXECUTION COPY
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND RECOGNITION AGREEMENT (this "Agreement"),
dated of September 1, 2006, is entered into among Xxxxxx Xxxxxxx Capital I
Inc., a Delaware corporation (the "Assignee"), Xxxxxx Xxxxxxx Mortgage Capital
Inc. (the "Assignor"), The Hemisphere National Bank, a national banking
association (the "Company"), and acknowledged by LaSalle Bank National
Association, as trustee (the "Trustee") of Xxxxxx Xxxxxxx Mortgage Loan Trust
2006-12XS (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. 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 and all obligations related to (a) those certain
Mortgage Loans listed on the schedule (the "Mortgage Loan Schedule") attached
hereto as Exhibit A (the "Mortgage Loans") and (b) except as described below,
that certain Mortgage Loan Sale and Servicing Agreement (the "Sale and
Servicing Agreement"), dated as of December 1, 2005, between the Assignor, as
purchaser (the "Purchaser"), and the Company, as seller, solely insofar as the
Sale and Servicing Agreement relates to the Mortgage Loans. For the avoidance
of doubt, all of the Mortgage Loans are "Servicing Retained" (as such term is
defined in the Sale and Servicing Agreement).
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 7.05 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.
Recognition of the Company
--------------------------
2. From and after September 29, 2006 (the "Closing Date"), the Company
shall and does hereby recognize that the Assignee will transfer the
Mortgage Loans and assign its rights and obligations under the Sale and
Servicing Agreement (solely to the extent set forth herein) and this
Agreement to the Trust created pursuant to a Pooling and Servicing
Agreement, dated as of September 1, 2006 (the "Pooling Agreement"), among
the Assignee, the Trustee and Xxxxx Fargo Bank, National Association, as
master servicer and as securities administrator. The Company hereby
acknowledges and agrees that from and after the Closing Date (i) the Trust
will be the owner of the Mortgage Loans, (ii) the Company shall look solely
to the Trust for performance of any obligations of the Assignor insofar as
they relate to the Mortgage Loans, (iii) except as provided in the
preceding paragraph, the Trust
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(including the Trustee and 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 (as modified by Section 6 below), 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, the Custodian or
the Bailee 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). Such rights
will include, without limitation, the right to terminate the Company, as
servicer (in such capacity, the "Servicer"), under the Sale and Servicing
Agreement upon the occurrence of an event of default thereunder, the right
to receive all remittances required to be made by the Servicer under the
Sale and Servicing Agreement, the right to receive all monthly reports and
other data required to be delivered by the Servicer under the Sale and
Servicing Agreement, the right to examine the books and records of the
Servicer to the extent provided in the Sale and Servicing Agreement,
indemnification rights and the right to exercise certain rights of consent
and approval relating to actions taken by Assignor. Neither the Company nor
the Assignor shall amend or agree to amend, modify, waive, 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. The Servicer shall make all
distributions under the Servicing 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: 50949200, MSM 2006-12XS
The Servicer shall deliver all reports required to be delivered under
the Servicing Agreement to the Master Servicer at the following address:
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager, MSM 2006-12XS
Office Number: (000) 000-0000
Telecopier: (000) 000-0000
Representations and Warranties of the Company
---------------------------------------------
3. The Company warrants and represents to the Assignor, the Assignee,
the Master Servicer and the Trust as of the date hereof that:
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(a) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(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, the Assignee, the Master Servicer and the Trust, 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; and
(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.
(e) The Servicer hereby represents and warrants to the Assignee
that, to the extent the Mortgage Loans will be part of a REMIC, the
Servicer shall service the Mortgage Loans and any real property acquired
upon default thereof (including, without limitation, making or
permitting any modification, waiver or amendment of any term of any
Mortgage Loan) in accordance with the Servicing Agreement, but in no
event in a manner that would (a) cause the REMIC to fail or qualify as a
REMIC or (b) result in the imposition of a tax upon the REMIC
(including, but not limited to, the tax on prohibited transactions as
defined in Section 860F(a)(2) of the Code, the tax on contributions to a
REMIC set forth in Section 860G(d) of the Code and the tax on "net
income from foreclosure property" as set forth in Section 860G(c) of the
Code).
4. (a) Pursuant to Section 15 of the Sale and Servicing Agreement, the
Company hereby represents and warrants, for the benefit of the Assignor, the
Assignee, the
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Master Servicer and the Trust, that the representations and warranties set
forth in Section 7.01 and Section 7.02 of the Sale and Servicing Agreement
with respect to the Mortgage Loans 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.
(b) It is expressly understood and agreed by the parties hereto
that (i) this Agreement is executed and delivered by LaSalle Bank National
Association, 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 Bank National Association 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 Bank
National Association, individually or personally, to perform any covenant
(either express or implied) contained herein and (iv) under no circumstances
shall LaSalle Bank National Association 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.
Remedies for Breach of Representations and Warranties
-----------------------------------------------------
5. The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee, the Master Servicer and the Trust
(including the Trustee 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 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).
Amendments to Sale and Servicing Agreement
------------------------------------------
6. The parties to this Agreement hereby agree to amend the Sale and
Servicing Agreement solely with respect to the Mortgage Loans as follows:
(a) The definition of "Servicing Fee Rate" in Section 1 of the
Sale and Servicing Agreement is hereby amended and restated in its
entirety as follows:
"Servicing Fee Rate: With respect to each adjustable-rate Mortgage
Loan, 0.375% per annum and with respect to each fixed-rate Mortgage
Loan, 0.250% per annum."
(b) Subsections 11.19 and 11.20 of the Sale and Servicing
Agreement are hereby deleted.
(c) Subsection 13.01 (b) of the Sale and Servicing Agreement is
hereby amended and restated in its entirety as follows:
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"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
(except as provided in Subsection 34.07) which failure
continues unremedied for a period of sixty (60) days (or, in
the case of (i) the annual statement of compliance required
under Subsection 11.19, (ii) the annual independent public
accountants' servicing report or attestation required under
Subsection 11.20, or (iii) the certification required under
Section 15 in the form of Exhibit 16, five (5) days) after
the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the
Servicer by the Purchaser;"
(d) Section 14.02 of the Sale and Servicing Agreement is hereby
deleted.
(e) Subsection 34.03(d) of the Sale and Servicing Agreement is
hereby amended and restated in its entirety as follows:
"For the purpose of satisfying its reporting obligation
under the Exchange Act with respect to any class of
asset-backed securities, the Seller shall (or shall cause
each Subservicer and Third-Party Originator to) (i) promptly
notify the Purchaser and any Depositor in writing of (A) any
material litigation or governmental proceedings pending
against the Seller, any Subservicer or any Third-Party
Originator, (B) any affiliations or relationships that
develop following the closing date of a Securitization
Transaction between the Seller, any Subservicer or any
Third-Party Originator and any of the parties specified in
clause (D) of paragraph (a) of this Section (and any other
parties identified in writing by the requesting party) with
respect to such Securitization Transaction, (C) any Event of
Default under the terms of this Agreement or any
Reconstitution Agreement, (D) any merger, consolidation or
sale of substantially all of the assets of the Company, and
(E) the Company's entry into an agreement with a Subservicer
to perform or assist in 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.
(f) Subsection 34.03(f) of the Sale and Servicing Agreement is
hereby amended and restated in its entirety as follows:
"In addition to such information as the Seller, as servicer,
is obligated to provide pursuant to other provisions of this
Agreement, if so requested by the Purchaser or any
Depositor, the Seller shall provide such information
regarding the performance or servicing of the Mortgage Loans
as is reasonably required by the Purchaser or any Depositor
to permit the Purchaser or such Depositor to comply with the
provisions of Regulation AB relating to Static Pool
Information regarding the performance of the Mortgage Loans
on the basis of the Purchaser's or such Depositor's
reasonable, good faith interpretation of the requirements of
Item
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1105(a)(1)-(3) of Regulation AB (including without
limitation as to the format and content of such Static Pool
Information). Such information shall be provided
concurrently with the monthly reports otherwise required to
be delivered by the Servicer under this Agreement commencing
with the first such report due in connection with the
applicable Securitization Transaction."
(g) The following paragraph is hereby incorporated into the Sale
and Servicing Agreement as new Subsections 34.03(g) and (h):
"(g) 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 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 of the occurrence of any of the following
events along with all information, data, and materials
related thereto as may be required to be included in the
related distribution report on Form 10-D (as specified in
the provisions of Regulation AB referenced below):
(i) any material modifications, extensions or waivers
of pool asset terms, fees, penalties or payments
during the distribution period or that have
cumulatively become material over time (Item
1121(a)(11) of Regulation AB);
(ii) material breaches of pool asset representations
or warranties or transaction covenants (Item
1121(a)(12) of Regulation AB); and
(iii) information regarding new asset-backed
securities issuances backed by the same pool assets,
any pool asset changes (such as, additions,
substitutions or repurchases), and any material
changes in origination, underwriting or other criteria
for acquisition or selection of pool assets (Item
1121(a)(14) of Regulation AB).
(h) The Company shall provide to the Purchaser, any Master
Servicer and any Depositor, evidence of the authorization of
the person signing any certification or statement, copies or
other evidence of Fidelity Bond Insurance and Errors and
Omission Insurance policy, financial information and
reports, and such other information related to the Company
or any Subservicer or the Company or such Subservicer's
performance hereunder, as may be reasonably requested by the
Purchaser, any Master Servicer or any Depositor."
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(h) Subsections 34.04 and 34.05 are hereby amended to delete the
date "March 10th" and replace with the date "March 1st".
(i) Subsection 34.05(a)(iv) is hereby amended and restated in its
entirety as follows:
"deliver, and cause each Subservicer and subcontractor
described in clause (iii) above to deliver, to the
Purchaser, any Depositor and any other Person that will be
responsible for signing the certification (a "Sarbanes
Certification") required by Rules 13a-14(d) and 15d-14(d)
under the Exchange Act (pursuant to Section 302 of the
Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed
issuer with respect to a Securitization Transaction a
certification, signed by an appropriate officer of the
Seller, in the form attached hereto as Exhibit 16."
(j) The penultimate sentence of Subsection 34.06(a) is hereby
amended and restated in its entirety as follows:
"The Seller shall cause any Subservicer used by the Seller
(or by any Subservicer) for the benefit of the Purchaser and
any Depositor to comply with the provisions of this Section
and with Subsections 34.02, 34.03(c), (e), (g) and (h),
34.04, 34.05 and 34.07 of this Agreement to the same extent
as if such Subservicer were the Seller, and to provide the
information required with respect to such Subservicer under
Subsection 34.03(d) of this Agreement."
(k) The last two lines of Subsection 34.06(b) are hereby amended
and restated as follows:
"...assessment of compliance and attestation, and the other
certifications required to be delivered..."
(l) Subsection 34.07 is hereby amended and restated in its
entirety as follows:
"Subsection 34.07 Indemnification; Remedies.
(a) The Seller shall indemnify the Purchaser, each affiliate
of the Purchaser, and each of the following parties
participating in a Securitization Transaction: each sponsor
and issuing entity; each Person responsible for the
preparation, execution or filing of any report required to
be filed with the Commission with respect to such
Securitization Transaction, or for execution of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act with respect to such Securitization
Transaction; each broker dealer acting as underwriter,
placement agent or initial purchaser, each Person who
controls any of such parties or the Depositor (within the
meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act); and the respective present and former
directors, officers, employees and agents of each of the
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foregoing and of the Depositor (each, an "Indemnified
Party"), and shall hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may
sustain arising out of or based upon:
(i)(A) any untrue statement of a material fact
contained or alleged to be contained in any
information, report, certification, accountants'
letter or other material provided in written or
electronic form under this Section 34 by or on behalf
of the Seller, or provided under this Section 34 by or
on behalf of any Subservicer, Subcontractor or
Third-Party Originator (collectively, the "Seller
Information"), or a. the omission or alleged omission
to state in the Seller Information a material fact
required to be stated in the Seller Information or
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading; provided, by way of
clarification, that clause (B) of this paragraph shall
be construed solely by reference to the Seller
Information and not to any other information
communicated in connection with a sale or purchase of
securities, without regard to whether the Seller
Information or any portion thereof is presented
together with or separately from such other
information;
(ii) any failure by the Seller, any Subservicer, any
Subcontractor or any Third-Party Originator to deliver
any information, report, certification, accountants'
letter or other material when and as required, under
this Section 34, including any failure by the Seller
to identify pursuant to Subsection 34.06(b) any
Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of
Regulation AB;
(iii) any breach by the Seller of a representation or
warranty set forth in Subsection 34.02(a) or in a
writing furnished pursuant to Subsection 34.02(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 Seller of a representation or warranty
in a writing furnished pursuant to Subsection 34.02(b)
to the extent made as of a date subsequent to such
closing date; or
(iv) the negligence, bad faith or willful misconduct
of the Seller in connection with its obligation to
deliver the certifications and reports required by
Section 34.03, Section 34.04 or Section 34.05 hereof.
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If the indemnification provided for herein is unavailable or
insufficient to hold harmless an Indemnified Party, then the
Seller agrees that it shall contribute to the amount paid or
payable by such Indemnified Party as a result of any claims,
losses, damages or liabilities incurred by such Indemnified
Party in such proportion as is appropriate to reflect the
relative fault of such Indemnified Party on the one hand and
the Seller on the other.
In the case of any failure of performance described in
clause (a)(ii) of this Section, the Seller shall promptly
reimburse the Purchaser, any Depositor, as applicable, and
each Person responsible for the preparation, execution or
filing of any report required to be filed with the
Commission with respect to such Securitization Transaction,
or for execution of a certification pursuant to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with
respect to such Securitization Transaction, for all costs
reasonably incurred by each such party in order to obtain
the information, report, certification, accountants' letter
or other material not delivered as required by the Seller,
any Subservicer, any Subcontractor or any Third-Party
Originator.
This indemnification shall survive the termination of this
Agreement or the termination of any party to this Agreement.
(b) (i) Any failure by the Seller, any
Subservicer, any Subcontractor or any
Third-Party Originator to deliver any
information, report, certification,
accountants' letter or other material when and
as required under this Section 34, or any
breach by the Seller of a representation or
warranty set forth in Subsection 34.02(a) or in
a writing furnished pursuant to Subsection
34.02(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 Seller of a representation or warranty
in a writing furnished pursuant to Subsection
34.02(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 Seller under this 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
Seller as servicer under this Agreement and/or
any applicable Reconstitution Agreement without
payment (notwithstanding anything in this
Agreement or any applicable Reconstitution
Agreement to the contrary) of any compensation
to the Seller (and if the Seller is servicing
any of the Mortgage Loans in a Securitization
Transaction, shall entitle the Purchaser or
Depositor, as applicable, in its sole
discretion to appoint a successor servicer
reasonably acceptable to any Master
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Servicer for such Securitization Transaction);
provided that to the extent that any provision of this
Agreement and/or any applicable Reconstitution
Agreement expressly provides for the survival of
certain rights or obligations following termination of
the Seller as servicer, such provision shall be given
effect.
(ii) Any failure by the Seller, any Subservicer or any
Subcontractor to deliver any information, report,
certification or accountants' letter when and as
required under Subsection 34.04 or 34.05, including
(except as provided below) any failure by the Seller
to identify pursuant to Subsection 34.06(b) any
Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of
Regulation AB, which continues unremedied for ten
calendar days after the date on which such
information, report, certification or accountants'
letter was required to be delivered shall constitute
an Event of Default with respect to the Seller under
this 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 Seller as
servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment
(notwithstanding anything in this Agreement to the
contrary) of any compensation to the Seller; provided
that to the extent that any provision of this
Agreement and/or any applicable Reconstitution
Agreement expressly provides for the survival of
certain rights or obligations following termination of
the Seller as servicer, such provision shall be given
effect.
Neither the Purchaser nor any Depositor shall be
entitled to terminate the rights and obligations of
the Seller pursuant to this subparagraph (b)(ii) if a
failure of the Seller 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 Seller shall promptly reimburse the
Purchaser (or any designee of the Purchaser, such as a
master servicer) and any Depositor, as applicable, for
all reasonable expenses incurred by the Purchaser (or
such designee) or such Depositor, as such are
incurred, in connection with the termination of the
Seller as servicer and the transfer of servicing of
the Mortgage Loans to a successor servicer. The
provisions of this paragraph shall not limit whatever
rights the Purchaser or any Depositor may have under
other provisions of this Agreement and/or any
applicable Reconstitution Agreement or otherwise,
whether in equity or at
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law, such as an action for damages, specific
performance or injunctive relief."
(m) The following paragraph is hereby incorporated into the Sale
and Servicing Agreement as new Section 35:
"Third Party Beneficiary. For purposes of this Agreement,
including but not limited to Subsections 11.19 and 11.20, 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."
(n) Exhibit 9 to the Sale and Servicing Agreement is hereby
replaced in its entirety with the Amended and Restated Exhibit 9
attached to this Agreement as Exhibit II.
(o) Exhibits 16 to the Sale and Servicing Agreement is hereby
replaced in its entirety with Exhibit A-1 to this Agreement.
(p) Written notice provided in compliance with Sections 34.03(d),
(e) or (g) of the Sale and Servicing Agreement shall be substantially in
the form of Exhibit C-1 to this Agreement.
Notices
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7. Any notices or other communications permitted or required under the
Sale and Servicing Agreement to be made to the Company, Assignor, Assignee,
and the Trustee shall be made in accordance with the terms of the Sale and
Servicing Agreement and shall be sent to the Assignee and Trustee as follows:
In the case of Assignor:
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-12XS
With a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel's Office
In the case of Assignee:
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
00
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-12XS
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
2006-12XS
In the case of the Company, as Seller:
The Hemisphere National Bank
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
With a copy to:
The Hemisphere National Bank
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
In the case of the Company, as Servicer:
The Hemisphere National Bank
0000 X. X. 00xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx
With copies to:
The Hemisphere National Bank
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
The Hemisphere National Bank
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
or to such other address as may hereafter be furnished by Assignee and the
Trustee to the parties in accordance with the provisions of the Sale and
Servicing Agreement.
Miscellaneous
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8. This Agreement shall be construed in accordance with accordance with
the laws of the State of New York to the extent such laws are not preempted by
federal law, without giving effect to the conflict of laws provisions of the
laws of the State of New York, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance therewith.
9. 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, with the
prior written consent of the Master Servicer and the Trustee.
10. This Agreement shall inure to the benefit of the successors and
assigns of the parties hereto, including the Master Servicer and the Trust
(including the Trustee acting on the Trust's behalf). Any entity into which
Assignor, Assignee, Master Servicer or Company may be merged or consolidated
shall, without the requirement for any further writing, be deemed Assignor,
Assignee, Master Servicer or Company, respectively, hereunder.
11. 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 (to the extent assigned hereunder) 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.
12. 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.
13. 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.
14. 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 or, if not defined therein, in
the Pooling and Servicing Agreement. In the event that the definition of a
capitalized term in the Sale and Servicing Agreement conflicts with the
definition of that capitalized term in the Pooling and Servicing Agreement,
the definition in the Pooling and Servicing Agreement shall control.
13
IN WITNESS WHEREOF, the parties hereto have executed this Assignment the
day and year first above written.
XXXXXX XXXXXXX MORTGAGE
CAPITAL INC.
By: /s/ Xxxxxxx Xxx
-------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx Xxx
-------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
THE HEMISPHERE NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: S.M.D.
14
Acknowledged and Agreed:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By: /s/ Xxxxxxxx Xxxxx
------------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee of Xxxxxx Xxxxxxx
Mortgage Loan Trust 2006-12XS
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Vice President
15
EXHIBIT I
Mortgage Loan Schedule
[see Schedule A to Pooling and Servicing Agreement]
EXH. I-1
Exhibit IIA: Standard File Layout - Delinquency Reporting
----------------------------------------------------------------------------------------------
Column/Header Name Description Decimal Format
Comment
----------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a loan by
the Servicer. This may be different
than the LOAN_NBR
----------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned to each
loan by the originator.
----------------------------------------------------------------------------------------------
CLIENT_NBR Servicer Client Number
----------------------------------------------------------------------------------------------
SERV_INVESTOR_NBR Contains a unique number as assigned by an
external servicer to identify a group of loans
in their system.
----------------------------------------------------------------------------------------------
BORROWER_FIRST_NAME First Name of the Borrower.
----------------------------------------------------------------------------------------------
BORROWER_LAST_NAME Last name of the borrower.
----------------------------------------------------------------------------------------------
PROP_ADDRESS Street Name and Number of Property
----------------------------------------------------------------------------------------------
PROP_STATE The state where the property located.
----------------------------------------------------------------------------------------------
PROP_ZIP Zip code where the property is located.
----------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next MM/DD/YYYY
payment is due to the servicer at the end of
processing cycle, as reported by Servicer.
----------------------------------------------------------------------------------------------
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
----------------------------------------------------------------------------------------------
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim MM/DD/YYYY
was filed.
----------------------------------------------------------------------------------------------
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy
was filed.
----------------------------------------------------------------------------------------------
BANKRUPTCY_CASE_NBR The case number assigned by the court to
the bankruptcy filing.
----------------------------------------------------------------------------------------------
POST_PETITION_DUE_DATE The payment due date once the bankruptcy MM/DD/YYYY
has been approved by the courts
----------------------------------------------------------------------------------------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From MM/DD/YYYY
ankruptcy. Either by Dismissal, Discharged
nd/or a Motion For Relief Was Granted.
----------------------------------------------------------------------------------------------
LOSS_MIT_APPR_DATE he Date The Loss Mitigation Was MM/DD/YYYY
pproved By The Servicer
----------------------------------------------------------------------------------------------
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For
A Loan Such As;
----------------------------------------------------------------------------------------------
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is MM/DD/YYYY
Scheduled To End/Close
----------------------------------------------------------------------------------------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually MM/DD/YYYY
Completed
----------------------------------------------------------------------------------------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the MM/DD/YYYY
servicer with instructions to begin
foreclosure proceedings.
----------------------------------------------------------------------------------------------
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to MM/DD/YYYY
Pursue Foreclosure
----------------------------------------------------------------------------------------------
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney MM/DD/YYYY
n a Foreclosure Action
----------------------------------------------------------------------------------------------
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is MM/DD/YYYY
expected to occur.
----------------------------------------------------------------------------------------------
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
----------------------------------------------------------------------------------------------
FRCLSR_SALE_AMT The amount a property sold for at the 2 No commas(,)
foreclosure sale. or dollar
signs ($)
----------------------------------------------------------------------------------------------
EVICTION_START_DATE The date the servicer initiates eviction MM/DD/YYYY
of the borrower.
----------------------------------------------------------------------------------------------
EVICTION_COMPLETED_DATE The date the court revokes legal MM/DD/YYYY
possession of the property from the borrower.
----------------------------------------------------------------------------------------------
LIST_PRICE The price at which an REO property is 2 No commas(,)
marketed. or dollar
signs ($)
----------------------------------------------------------------------------------------------
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
----------------------------------------------------------------------------------------------
OFFER_AMT The dollar value of an offer for an REO 2 No commas(,)
property. or dollar
signs ($)
----------------------------------------------------------------------------------------------
OFFER_DATE_TIME The date an offer is received by DA MM/DD/YYYY
Admin or by the Servicer.
----------------------------------------------------------------------------------------------
REO_CLOSING_DATE The date the REO sale of the property is MM/DD/YYYY
scheduled to close.
----------------------------------------------------------------------------------------------
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
----------------------------------------------------------------------------------------------
OCCUPANT_CODE Classification of how the property is
occupied.
----------------------------------------------------------------------------------------------
PROP_CONDITION_CODE A code that indicates the condition of
the property.
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
PROP_INSPECTION_DATE The date a property inspection is MM/DD/YYYY
performed.
----------------------------------------------------------------------------------------------
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
----------------------------------------------------------------------------------------------
CURR_PROP_VAL The current "as is" value of the 2
property based on brokers price opinion
or appraisal.
----------------------------------------------------------------------------------------------
REPAIRED_PROP_VAL The amount the property would be worth 2
if repairs are completed pursuant to a
broker's price opinion or appraisal.
----------------------------------------------------------------------------------------------
If applicable:
----------------------------------------------------------------------------------------------
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
----------------------------------------------------------------------------------------------
DELINQ_REASON_CODE The circumstances which caused a borrower to
stop paying on a loan. Code indicates the
reason why the loan is in default for this
cycle.
----------------------------------------------------------------------------------------------
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed MM/DD/YYYY
With Mortgage Insurance Company.
----------------------------------------------------------------------------------------------
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company MM/DD/YYYY
Disbursed Claim Payment
----------------------------------------------------------------------------------------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid 2 No commas(,)
On Claim or dollar
signs ($)
----------------------------------------------------------------------------------------------
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance MM/DD/YYYY
Company
----------------------------------------------------------------------------------------------
POOL_CLAIM_AMT Amount of Claim Filed With Pool 2 No commas(,)
Insurance Company or dollar
signs ($)
----------------------------------------------------------------------------------------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was MM/DD/YYYY
Issued By The Pool Insurer
----------------------------------------------------------------------------------------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance 2 No commas(,)
Company or dollar
signs ($)
----------------------------------------------------------------------------------------------
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 MM/DD/YYYY
HUD
----------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim MM/DD/YYYY
Payment
----------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the MM/DD/YYYY
Veterans Admin
----------------------------------------------------------------------------------------------
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim MM/DD/YYYY
Payment
----------------------------------------------------------------------------------------------
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------
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
----------------------------------------------------
3
----------------------------------------------------
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(,) 11
scheduled interest payment that a or dollar signs ($)
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(,) 11
loan as reported by the Servicer. or dollar signs ($)
----------------------------------------------------------------------------------------------------------
NEW_PAY_AMT The new loan payment amount as 2 No commas(,) 11
reported by the Servicer. or dollar signs ($)
----------------------------------------------------------------------------------------------------------
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(,) 11
balance at the beginning of the or dollar signs ($)
processing cycle.
----------------------------------------------------------------------------------------------------------
ACTL_END_PRIN_BAL The borrower's actual principal 2 No commas(,) 11
balance at the end of the or dollar signs ($)
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(,) 11
applied. or dollar signs ($)
----------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_1 The curtailment date associated MM/DD/YYYY 10
with the first curtailment amount.
----------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_1 The curtailment interest on the 2 No commas(,) 11
first curtailment amount, if or dollar signs ($)
applicable.
----------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_2 The second curtailment amount to 2 No commas(,) 11
be applied. or dollar signs ($)
----------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_2 The curtailment date associated MM/DD/YYYY 10
with the second curtailment amount.
----------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_2 The curtailment interest on the 2 No commas(,) 11
second curtailment amount, if or dollar signs ($)
applicable.
----------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_3 The third curtailment amount to be 2 No commas(,) 11
applied. or dollar signs ($)
----------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_3 The curtailment date associated MM/DD/YYYY 10
with the third curtailment amount.
----------------------------------------------------------------------------------------------------------
CURT_ADJ_AMT_3 The curtailment interest on the 2 No commas(,) 11
third curtailment amount, if or dollar signs ($)
applicable.
----------------------------------------------------------------------------------------------------------
PIF_AMT The loan "paid in full" amount as 2 No commas(,) 11
reported by the Servicer. or dollar signs ($)
----------------------------------------------------------------------------------------------------------
PIF_DATE The paid in full date as reported MM/DD/YYYY 10
by the Servicer.
----------------------------------------------------------------------------------------------------------
ACTION_CODE The standard FNMA numberic code used to Action Code Key: 2
indicate the default/delinquent status 15=Bankruptcy,
of a particular loan. 00xXxxxxxxxxxx, , 00xXXX,
63=Substitution,
65=Repurchase,70=REO
----------------------------------------------------------------------------------------------------------
INT_ADJ_AMT The amount of the interest 2 No commas(,) 11
adjustment as reported by the or dollar signs ($)
Servicer.
----------------------------------------------------------------------------------------------------------
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment 2 No commas(,) 11
amount, if applicable. or dollar signs ($)
----------------------------------------------------------------------------------------------------------
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, 2 No commas(,) 11
if applicable. or dollar signs ($)
----------------------------------------------------------------------------------------------------------
LOAN_LOSS_AMT The amount the Servicer is passing 2 No commas(,) 11
as a loss, if applicable. or dollar signs ($)
----------------------------------------------------------------------------------------------------------
SCHED_BEG_PRIN_BAL The scheduled outstanding 2 No commas(,) 11
principal amount due at the or dollar signs ($)
beginning of the cycle date to be
passed through to investors.
----------------------------------------------------------------------------------------------------------
SCHED_END_PRIN_BAL The scheduled principal balance 2 No commas(,) 11
due to investors at the end of a or dollar signs ($)
processing cycle.
----------------------------------------------------------------------------------------------------------
SCHED_PRIN_AMT The scheduled principal amount as 2 No commas(,) 11
reported by the Servicer for the or dollar signs ($)
current cycle -- only applicable
for Scheduled/Scheduled Loans.
----------------------------------------------------------------------------------------------------------
SCHED_NET_INT The scheduled gross interest 2 No commas(,) 11
amount less the service fee amount or dollar signs ($)
for the current cycle as reported
by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
----------------------------------------------------------------------------------------------------------
ACTL_PRIN_AMT The actual principal amount 2 No commas(,) 11
collected by the Servicer for the or dollar signs ($)
current reporting cycle -- only
applicable for Actual/Actual Loans.
----------------------------------------------------------------------------------------------------------
ACTL_NET_INT The actual gross interest amount 2 No commas(,) 11
less the service fee amount for or dollar signs ($)
the current reporting cycle as reported
by the Servicer -- only applicable for
Actual/Actual Loans.
----------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ AMT The penalty amount received when a 2 No commas(,) 11
borrower prepays on his loan as or dollar signs ($)
reported by the Servicer.
----------------------------------------------------------------------------------------------------------
2
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for 2 No commas(,) 11
the loan waived by the servicer. or dollar signs ($)
----------------------------------------------------------------------------------------------------------
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
----------------------------------------------------------------------------------------------------------
MOD_TYPE The Modification Type. Varchar - 30
value can be alpha
or numeric
----------------------------------------------------------------------------------------------------------
DELINQ_P&I_ADVANCE_AMT The current outstanding principal 2 No commas(,) 11
and interest advances made by or dollar signs ($)
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.
1.
2. 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.
3. 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.
EXH. II 1
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 ( ).
EXH. II-2
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
HUD Part B ______________(18b)
EXH. II-3
(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)
EXH. II-4
Escrow Disbursement Detail
--------------------------------------------------------------------------------
Type Date Paid Period of Total Paid Base Penalties Interest
(Tax /Ins.) Coverage Amount
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXH. II-5
EXHIBIT A-1
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the
"Agreement"), among [IDENTIFY PARTIES]
I, ________________________________, the _____________________ of Wachovia
Mortgage Corporation, certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], and their officers,
with the knowledge and intent that they will rely upon this certification,
that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Company's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB and identified
as the responsibility of the Company on Exhibit B to the Regulation AB
Compliance Addendum to the Agreement (the "Servicing Criteria"), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the "Exchange Act") and Item 1122 of Regulation AB (the "Servicing
Assessment"), the registered public accounting firm's attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act and
Section 1122(b) of Regulation AB (the "Attestation Report"), and all servicing
reports, officer's certificates and other information relating to the
servicing of the Mortgage Loans by the Company during 200[ ] that were
delivered by the Company to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the "Company
Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light of
the circumstances under which such statements were made, not misleading with
respect to the period of time covered by the Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information required
to be provided by the Company under the Agreement has been provided to the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee];
(4) I am responsible for reviewing the activities performed by the Company
as servicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Compliance Statement, the Servicing Assessment or the Attestation
Report, the Company has fulfilled its obligations under the Agreement in all
material respects; and
(5) The Compliance Statement required to be delivered by the Company
pursuant to the Agreement, and the Servicing Assessment and Attestation Report
required to be provided by the Company and by any Subservicer 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.
EXH. A-1-1
Date:
------------------------------------
By:
------------------------------------
Name:
Title:
EXH. X-0-0
XXXXXXX X-0
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria";
-------------------------------------------------------------------------------
Servicing Criteria Applicable
Servicing
Criteria
-------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------
General Servicing Considerations
-------------------------------------------------------------------------------
Policies and procedures are instituted to monitor any
performance or other triggers and events of default in X
accordance with the transaction agreements.
1122(d)(1)(i)
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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)
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A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing
function throughout the reporting period in the amount X
of coverage required by and otherwise in accordance
with the terms of the transaction agreements.
1122(d)(1)(iv)
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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 days X
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 authorized X
personnel.
1122(d)(2)(ii)
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Advances of funds or guarantees regarding collections,
cash flows or distributions, and any interest or other
fees charged for such advances, are made, reviewed and X
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)
-------------------------------------------------------------------------------
EXH. B-1-1
-------------------------------------------------------------------------------
Servicing Criteria Applicable
Servicing
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 X
depository institution" with respect to a foreign
financial institution means a foreign financial
institution that meets the requirements of
Rule 13k-1 (b)(1) of the Securities Exchange Act.
1122(d)(2)(v)
-------------------------------------------------------------------------------
Unissued checks are safeguarded so as to prevent
unauthorized access.
1122(d)(2)(vi)
-------------------------------------------------------------------------------
Reconciliations are prepared on a monthly basis
for all asset-backed securities related bank
accounts, including custodial accounts and
related bank clearing accounts. These
reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the
bank statement cutoff date, or such other number
of days specified in the transaction X
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 X
other terms set forth in 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)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Servicing Criteria Applicable
Servicing
Criteria
-------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------
Pool Asset Administration
-------------------------------------------------------------------------------
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 X
in 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 X
other number of days specified in the transaction
agreements, and allocated to principal, interest
or other items (e.g., escrow) in accordance with
the related mortgage loan documents.
1122(d)(4)(iv)
-------------------------------------------------------------------------------
The Servicer's records regarding the mortgage loans
agree with the Servicer's records with respect to an X
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 approved by X
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, X
conducted and concluded 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)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Servicing Criteria Applicable
Servicing
Criteria
-------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------
Adjustments to interest rates or rates of return
for mortgage loans with variable rates are computed X
based on the related mortgage loan documents.
1122(d)(4)(ix)
-------------------------------------------------------------------------------
Regarding any funds held in trust for an obligor
(such as escrow accounts): (A) such funds are
analyzed, in accordance with the obligor's mortgage
loan documents, on at least an annual basis, or
such other period specified in the transaction
agreements; (B) interest on such funds is paid, X
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 such payments,
provided that such support has been received by the X
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 the X
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 X
accordance 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)
-------------------------------------------------------------------------------
[THE HEMISPHERE NATIONAL BANK]
[NAME OF SUBSERVICER]
Date:
------------------------------------
By:
------------------------------------
Name:
Title:
EXHIBIT C-1
Additional Disclosure Notification
Xxxxx Fargo Bank, N.A. as [Securities Administrator and Master
Servicer]
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn: Corporate Trust Services - MSM 2006-12XS - SEC REPORT PROCESSING
RE: **Additional Form [ ] Disclosure**Required
Ladies and Gentlemen:
In accordance with Section [34.03(d)][34.03(e)][34.03(g)] of the Sale
and Servicing Agreement, dated as of December 1, 2005, as amended by the
Assignment, Assumption and Recognition Agreement dated as of [date], among
Xxxxxx Xxxxxxx Capital I Inc., as Depositor, The Hemisphere National Bank,
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:
