Exhibit 99.9a
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this
"Assignment"), dated as of September 1, 2006, is entered into among Xxxxxx
Xxxxxxx Capital I Inc., a Delaware corporation (the "Depositor"), Xxxxxx
Xxxxxxx Mortgage Capital Inc. ("MSMCI"), PHH Mortgage Corporation (formerly
known as Cendant Mortgage Corporation) as a seller ("PHH" and, in such
capacity, a "Seller") and servicer (in such capacity, the "Servicer"),
Xxxxxx'x Gate Residential Mortgage Trust ("Xxxxxx'x Gate" and a "Seller" and,
together with PHH, the "Sellers") 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 servicer, the "Master Servicer").
RECITALS
WHEREAS MSMCI, the Sellers and the Servicer have entered into a certain
Third Amended and Restated Mortgage Loan Flow Purchase, Sale & Servicing
Agreement, dated as of January 1, 2006 (as amended or modified to the date
hereof, the "Agreement"), pursuant to which MSMCI has acquired certain
Mortgage Loans pursuant to the terms of the Agreement and the Servicer has
agreed to service such Mortgage Loans;
WHEREAS the Depositor has agreed, on the terms and conditions contained
herein, to purchase from MSMCI certain of the Mortgage Loans (the "Specified
Mortgage Loans") which are subject to the provisions of the Agreement and are
listed on the mortgage loan schedule attached as Exhibit I hereto (the
"Specified Mortgage Loan Schedule"); and
WHEREAS the Trustee, on behalf of the Trust, has agreed, on the terms
and conditions contained herein, to purchase from the Depositor the Specified
Mortgage Loans;
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration (the receipt and sufficiency of
which are hereby acknowledged), the parties agree as follows:
1. Assignment and Assumption
-------------------------
(a) On and of the date hereof, MSMCI hereby sells, assigns and transfers
to the Depositor all of its right, title and interest in the Specified
Mortgage Loans and all rights and obligations related thereto as provided
under the Agreement to the extent relating to the Specified Mortgage Loans,
the Depositor hereby accepts such assignment from MSMCI (the "First Assignment
and Assumption"), and the Sellers hereby acknowledge the First Assignment and
Assumption.
MSMCI specifically reserves and does not assign to the Depositor
hereunder any and all right, title and interest in, to and under and all
obligations of MSMCI with respect to any Mortgage Loans subject to the
Agreement which are not the Specified Mortgage Loans.
(b) On and of the date hereof, immediately after giving effect to the
First Assignment and Assumption, the Depositor 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 Agreement to the extent relating to the
Specified Mortgage Loans, and the Trustee, on
behalf of the Trust, hereby accepts such assignment from the Depositor (the
"Second Assignment and Assumption"), and the Sellers hereby acknowledge the
Second Assignment and Assumption.
(c) On and as of the date hereof, MSMCI represents and warrants to the
Depositor and the Trustee that MSMCI has not taken any action that would serve
to impair or encumber the respective ownership interests of the Depositor and
the Trustee in the Specified Mortgage Loans since the date of MSMCI's
acquisition of the Specified Mortgage Loans.
2. Recognition of Trustee
----------------------
(a) From and after the date hereof, both MSMCI and the Sellers shall
note the transfer of the Specified Mortgage Loans to the Trustee, in their
respective books and records and shall recognize the Trustee, on behalf of the
Trust, as of the date hereof, as the owner of the Specified Mortgage Loans,
and Servicer shall service the Specified Mortgage Loans for the benefit of the
Trust pursuant to the Agreement, the terms of which are incorporated herein by
reference. It is the intention of the Sellers, the Servicer, the Depositor,
the Trustee and MSMCI that this Assignment shall be binding upon and inure to
the benefit of the Depositor, the Trustee and MSMCI and their respective
successors and assigns.
(b) Without in any way limiting the foregoing, the parties confirm that
this Assignment includes the rights relating to amendments or waivers under
the Agreement. Accordingly, the right of MSMCI to consent to any amendment of
the Agreement and its rights concerning waivers as set forth in Section 12.07
of the Agreement shall be exercisable, to the extent any such amendment or
waiver affects the Specified Mortgage Loans or any of the rights under the
Agreement with respect thereto (other than the servicing of the Specified
Mortgage Loans, which shall be enforced by the Master Servicer) by the Trustee
as assignee of MSMCI.
(c) It is expressly understood and agreed by the parties hereto that (i)
this Assignment 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
dated as of the date hereof among the Depositor, the Master Servicer, Xxxxx
Fargo Bank, National Association, as securities administrator, and the Trustee
(the "Pooling and Servicing Agreement") for the Xxxxxx Xxxxxxx Mortgage Loan
Trust 2006-12XS, Mortgage Pass-Through Certificates, Series 2006-12XS, (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, (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 Assignment and (v) all recourse for any
payment liability or other obligation of the assignee shall be had solely to
the assets of the Trust.
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3. Representations and Warranties
------------------------------
(a) The Depositor 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 Sellers or MSMCI other than those
contained in the Agreement or this Assignment.
(b) Each of the parties hereto represents and warrants that it is duly
and legally authorized to enter into this Assignment.
(c) Each of the Depositor, MSMCI, Servicer and the Sellers represents
and warrants that this Assignment 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).
(d) Each Seller hereby restates, as of the Closing Date (as defined in
the Pooling and Servicing Agreement referred to below), the representations
and warranties set forth in the Agreement, other than the representations and
warranties contained in Sections 3.03(4), (20), (21), (25), (31) or (58) of
the Agreement, with respect to each of the Specified Mortgage Loans that were
sold by it under the Agreement, to and for the benefit of the Depositor, the
Trustee and the Trust, and by this reference incorporates such representations
and warranties herein, as of such Closing Date.
(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. The Servicer hereby acknowledges that Xxxxx Fargo Bank, National
Association has been appointed as the Master Servicer of the Specified
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
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For further credit to: 50949200, MSM 2006-12XS
The Servicer shall deliver all reports required to be delivered under
the Agreement to the Master Servicer at the following address:
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager, MSM 2006-12XS
Office Number: (000) 000-0000
Telecopier: (000) 000-0000
For the avoidance of doubt, the parties to this Assignment hereby
acknowledge that the Master Servicer shall have no obligation for enforcing or
overseeing the Servicer's activities pursuant to Sections 5.18(c) and (d) of
the Agreement.
5. Amendments to the Agreement
---------------------------
The parties to this Assignment hereby agree to amend the Agreement,
solely with respect to the Specified Mortgage Loans, as follows:
(a) The term "Indemnified Party" is added as a new defined term in
Section 1.01 and shall have the following meaning:
"Indemnified Party: each Party (other than each Seller and the
Servicer) described in the first sentence of Section 13.07(a)
hereof."
(b) The definition of "Permitted Investments" in Section 1.01 shall have
the meaning of such term as defined in the Pooling and Servicing
Agreement.
(c) The definition of "Remittance Date" in Section 1.01 is hereby
amended and restated in its entirety as follows:
"Remittance Date: No later than 2:00 p.m. New York time on the
18th day of each month (or, if such 18th day is not a Business
Day, the following Business Day)."
(d) The definition of "Servicing Criteria" in Section 1.01 is hereby
amended and restated in its entirety as follows:
"Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB for which the Servicer is responsible as
identified on Exhibit 14 attached hereto."
(e) The penultimate paragraph of Section 3.05 of the Agreement is hereby
amended and restated as follows:
"With respect to any Mortgage Loans sold in a Securitization
Transaction where the Servicer remains as the servicer, the
Servicer agrees that on or before March 1st each year following
the year such Securitization Transaction occurs, the Servicer
shall deliver, and shall cause each subservicert to deliver, to
the depositor and the trustee, a certification in the form
attached as Exhibit 11 hereto, executed by a senior officer of the
Servicer in charge of servicing for use in connection with any
Form 10-K to be filed with the Securities and Exchange Commission
with respect to the securitization trust. The
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obligation to provide such certification will terminate to the
extent the related securitization trust's obligation to file
reports under the Exchange Act, terminates."
(f) The second paragraph of Section 5.13 of the Agreement is hereby
amended and restated in its entirety as follows:
"With respect to any REO Property, 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. In that event, 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
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otherwise, unless the Servicer has agreed to indemnify and hold
harmless the Purchaser, or its designee, with respect to the
imposition of any such taxes."
(g) The third paragraph of Section 5.13 of the Agreement is hereby
deleted in its entirety.
(h) The first paragraph of Section 6.02 of the Agreement is hereby
amended and restated in its entirety as follows:
"Reporting. Not later than the 5th Business Day of each month, the
Servicer shall forward to the Master Servicer in hard copy and
electronic format a statement in the form of Exhbit 6.02(a) and
Exhibit 6.02(b), certified by a Servicing Officer, setting forth
(a) the amount of the distribution made on such Remittance Date
which is allocable to principal and allocable to interest; (b) the
amount of servicing compensation received by the Servicer during
the prior calendar month; (c) the aggregate Stated Principal
Balance and the aggregate unpaid principal balance of the Mortgage
Loans as of the last day of the preceding month; and (d) the paid
through date for each Mortgage Loan. Such statement shall also
include information regarding delinquencies on Mortgage Loans,
indicating the number and aggregate principal amount of Mortgage
Loans which are either one (1), two (2) or three (3) or more
months delinquent and the book value of any REO Property, or such
other mortgage loan level data as agreed upon by the Servicer and
the Master Servicer, and the monthly reports substantially in the
form of Exhibit 15 attached hereto (or in such other formats
mutually agreed upon between the Servicer and the Master
Servicer). Such monthly reports shall be available by the Servicer
for the Purchaser on Servicer's secured web site. The Servicer
shall provide training, secured access and password(s) to the
Purchaser on the operation of the website."
(i) Section 7.04 of the Agreement is hereby amended and restated in its
entirety as follows:
"Annual Statement as to Compliance. The Servicer shall deliver to
the Purchaser and the Master Servicer, on or before March 1st each
year beginning March 1, 2006, an Officer's Certificate stating
that (a) a review of the activities of the Servicer during the
preceding calendar year and of its performance under this
Agreement has been made under such officer's supervision, and (b)
to the best of such officer's knowledge, based on such review, the
Servicer has fulfilled all its obligations under this Agreement
throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof and the
action being taken by the Servicer to cure such default."
(j) Section 7.05 of the Agreement is hereby amended and restated in its
entirety as follows:
"Annual Independent Public Accountants' Servicing Report. On or
before March 1st of each year beginning March 1, 2006, the
Servicer at its expense shall cause a firm of independent public
accountants which is a member of the American Institute of
Certified Public Accountants to furnish a statement to the
Purchaser and the Master Servicer to the effect that such firm
has, with respect to the Servicer's overall servicing operations,
examined such operations in accordance with the requirements of
the Uniform Single Attestation Program for Mortgage Bankers,
stating such firm's conclusions relating thereto."
(k) Section 9.01 of the Agreement is hereby amended to insert the
following as the penultimate paragraph of such Section:
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"In addition, the Servicer shall indemnify and hold harmless
the Master Servicer and each of its directors, officers,
employees, agents, and affiliates from and against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments and other costs and
expenses arising out of or based upon (a) any breach by the
Servicer of any if its obligations under hereunder, including
particularly its obligations to provide any Assessment of
Compliance, Attestation Report, Compliance Statement or any
information, data or materials provided by the Servicer hereunder,
or (c) the negligence, bad faith or willful misconduct of the
Servicer in connection with its performance hereunder. If the
indemnification provided for herein is unavailable or insufficient
to hold harmless the Master Servicer, then the Servicer as a
result of any claims, losses, damages or liabilities incurred by
the Master Servicer in such proportion as is appropriate to
reflect the relative fault of the Master Servicer on the one hand
and the Servicer on the other."
(l) The word "or" is deleted from the end of Section 10.01(8), the word
"or" is added at the end of Section 10.01(9) and the following paragraph
is hereby incorporated into the Agreement as new Section 10.01(10):
"(f) failure by the Servicer to duly perform, within the required
time period, its obligations under Sections 7.04 or 7.05 which
failure continues unremedied for a period of fifteen (15) 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
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;"
(m) The following paragraph is hereby incorporated into the Agreement as
new Section 12.14:
"Third Party Beneficiary. For purposes of this Agreement,
including but not limited to Section 7.05, 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) Section 13.03(d) of the Agreement is hereby amended and restated in
its entirety as follows:
"(d) For the purpose of satisfying the reporting obligation under
the Exchange Act with respect to any class of asset-backed
securities, each Seller and the Servicer shall (or shall cause
each Subservicer and Third-Party Originator to) (i) provide prompt
notice to the Purchaser, any Master Servicer and any Depositor in
writing of (A) any material litigation or governmental proceedings
involving the Company, any Subservicer or any Third-Party
Originator, (B) any affiliations or relationships that develop
following the closing date of a Securitization Transaction between
the Company, any Subservicer or any Third-Party Originator and any
of the parties specified in clause (D) of paragraph (a) of this
Section (and any other parties identified in writing by the
requesting party) with respect to such Securitization Transaction,
(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."
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(o) Section 13.03(f) of the Agreement is hereby amended and restated in
its entirety as follows:
"(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 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).
(g) The Company shall provide to the Purchaser, any Master
Servicer and any Depositor, evidence of the authorization of the
person signing any certification or statement, copies or other
evidence of Fidelity Bond Insurance and Errors and Omission
Insurance policy, financial information and reports, and such
other information related to the Company or any Subservicer or the
Company or such Subservicer's performance hereunder."
(p) Section 13.05(1)(a)(iv) of the Agreement is hereby amended and
restated in its entirety as follows:
"(iv) 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 Servicer,
in the form attached hereto as Exhibit 11."
(q) Section 13.06(a) of the Agreement is hereby amended to revise the
number of calendar days in the first sentence of such Section from
"fifteen (15)" to "thirty (30)."
(r) Section 13.06(a) of the Agreement is hereby amended to add Sections
13.03(f) and 13.03(g) as provisions that the Subservicers must comply
with to same extent as if such Subservicer were the Servicer.
(s) The last sentence of the last paragraph of Section 13.06 of the
Agreement is amended to require the Servicer to cause any Subservicer or
Subcontractor to provide any assessment of
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compliance and attestation but also any other certifications required to
delivered under this Section 13.06.
(t) Section 13.07(a)(ii) of the Agreement is hereby amended and restated
in its entirety as follows:
"(ii) any breach by the Seller or Servicer under, or any failure
by any Seller, the Servicer, 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 XIII, including any failure by the
Servicer to identify pursuant to Section 13.06(b) any
Subcontractor "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB;"
(u) The word "or" is struck at the end of Section 13.07(a)(ii) of the
Agreement and the following is inserted to Section 13.07(a) of the
Agreement:
"(iv) negligence, bad faith or willful misconduct of the Servicer
in connection with its performance under this Article XIII.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless an Indemnified Party, then the
Servicer 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 Servicer on the
other.
This indemnification shall survive the termination of this
Agreement or the termination of any party to this Agreement."
(v) The following parenthetical is inserted directly before the proviso
in the last sentence of the first paragraph of Section 13.07(b)(i) of
the Agreement:
"(and if the Servicer 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)"
(w) Exhibits 6.02(a) and 6.02(b) of the Agreement are hereby deleted and
replaced with Exhibit II to this Assignment.
(x) Exhibit 11 to the Agreement is hereby deleted and replaced with
Exhibit A-1 to this Assignment.
(y) Exhibit 14 to the Agreement is hereby deleted and replaced with
Exhibit B-1 to this Assignment.
(z) Written notice provided in compliance with Sections 13.03(d), (e) or
(f) of the Agreement shall be substantially in the form of Exhibit C-1
to this Assignment.
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6. Continuing Effect
-----------------
Except as contemplated hereby, the Agreement shall remain in full force
and effect in accordance with its terms.
7. Governing Law
-------------
This Assignment and the rights and obligations hereunder shall be
governed by and construed in accordance with the internal laws of the State of
New York.
8. Notices
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Any notices or other communications permitted or required under the
Agreement to be made to the Depositor, MSMCI, the Master Servicer, the
Sellers, the Servicer and the Trustee shall be made in accordance with the
terms of the Agreement and shall be sent to the Depositor and Trustee as
follows:
In the case of MSMCI:
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 the Depositor:
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
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 PHH and the Servicer:
PHH Mortgage Corporation
0000 Xxxxxxxxxx Xxxx
Xx. Xxxxxx, XX 00000
Attention: Vice President of Servicing
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In the case of Xxxxxx'x Gate:
Xxxxxx'x Gate Residential Mortgage Trust
c/o PHH Mortgage Corporation
0000 Xxxxxxxxxx Xxxx
Xx. Xxxxxx, XX 00000 Attention: Vice President of Servicing
or to such other address as may hereafter be furnished by the Depositor and
the Trustee to the parties in accordance with the provisions of the Agreement.
9. Ratification
------------
Except as modified and expressly amended by this Assignment, the
Agreement is in all respects ratified and confirmed, and all terms, provisions
and conditions thereof shall be and remain in full force and effect.
10. Counterparts
------------
This Assignment may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same instrument.
11. Definitions
-----------
Any capitalized term used but not defined in this Assignment has the
same meaning as in the Agreement.
[SIGNATURE PAGE FOLLOWS]
11
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
PHH MORTGAGE CORPORATION
By: /s/ Chrissy Judge
-------------------------------
Name: Chrissy Judge
Title: Assistant Vice President
XXXXXX'X GATE RESIDENTIAL MORTGAGE
TRUST
By: PHH Mortgage Corporation, as
Administrator
By: /s/ Chrissy Judge
-------------------------------
Name: Chrissy Judge
Title: Assistant Vice President
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
EXHIBIT I
Mortgage Loan Schedule
[see Schedule A to Pooling and Servicing Agreement]
I-1
Exhibit IIA: Standard File Layout - Delinquency Reporting
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Column/Header Name Description Decimal Format
Comment
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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.
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BORROWER_FIRST_NAME First Name of the Borrower.
----------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
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.
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BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy
was filed.
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BANKRUPTCY_CASE_NBR The case number assigned by the court to
the bankruptcy filing.
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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
Bankruptcy. 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 MM/DD/YYYY
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
EXH. I-1
----------------------------------------------------------------------------------------------------
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.
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ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to MM/DD/YYYY
Pursue Foreclosure
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FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney MM/DD/YYYY
in a Foreclosure Action
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FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is MM/DD/YYYY
expected to 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 2 No commas(,)
foreclosure sale. or dollar
signs ($)
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EVICTION_START_DATE The date the servicer initiates eviction MM/DD/YYYY
of the borrower.
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EVICTION_COMPLETED_DATE The date the court revokes legal MM/DD/YYYY
possession of the property from the
borrower.
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LIST_PRICE The price at which an REO property is 2 No commas(,)
marketed. or dollar
signs ($)
----------------------------------------------------------------------------------------------------
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
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OFFER_AMT The dollar value of an offer for an REO 2 No commas(,)
property. or dollar
signs ($)
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OFFER_DATE_TIME The date an offer is received by DA Admin MM/DD/YYYY
or by the Servicer.
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REO_CLOSING_DATE The date the REO sale of the property is MM/DD/YYYY
scheduled to close.
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REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
----------------------------------------------------------------------------------------------------
OCCUPANT_CODE Classification of how the property is
occupied.
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PROP_CONDITION_CODE A code that indicates the condition of
the property.
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PROP_INSPECTION_DATE The date a property inspection is MM/DD/YYYY
performed.
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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.
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REPAIRED_PROP_VAL The amount the property would be worth if 2
repairs are completed pursuant to a
broker's price opinion or appraisal.
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If applicable:
--------------
----------------------------------------------------------------------------------------------------
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
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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.
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MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed MM/DD/YYYY
With Mortgage Insurance Company.
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MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed MM/DD/YYYY
Claim Payment
----------------------------------------------------------------------------------------------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On 2 No commas(,)
Claim or dollar
signs ($)
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POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance MM/DD/YYYY
Company
----------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance 2 No
Company commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------------
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 ($)
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
----------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------------
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 ($)
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VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the MM/DD/YYYY
Veterans Admin
----------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim MM/DD/YYYY
Payment
----------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,)
or dollar
signs ($)
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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 Code Delinquency Description
---------------- ------------------------------------------
001 FNMA-Death of principal mortgagor
---------------- ------------------------------------------
002 FNMA-Illness of principal mortgagor
---------------- ------------------------------------------
003 FNMA-Illness of mortgagor's family member
----------------- ------------------------------------------
004 FNMA-Death of mortgagor's family member
----------------- ------------------------------------------
005 FNMA-Marital difficulties
----------------- ------------------------------------------
006 FNMA-Curtailment of income
----------------- ------------------------------------------
007 FNMA-Excessive Obligation
----------------- ------------------------------------------
008 FNMA-Abandonment of property
----------------- ------------------------------------------
EXH. I-1
----------------- ------------------------------------------
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
----------------- ------------------------------------------
Exhibit IIC: Standard File Layout - Master Servicing
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Column Name Description Decimal Comment Max
Format Size
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SER_INVESTOR_NBR A value assigned by the Text up to 10 digits 20
Servicer 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 Text up to 10 digits 10
loan by the Servicer. This may
be different than the LOAN_NBR.
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BORROWER_NAME The borrower name as received Maximum length of 30 (Last, 30
in the file. It is not First)
separated by first and last
name.
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SCHED_PAY_AMT Scheduled monthly principal and 2 No commas(,) or dollar 11
scheduled interest payment that signs ($)
a borrower is expected to pay,
P&I constant.
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NOTE_INT_RATE The loan interest rate as 4 Max length of 6 6
reported by the Servicer.
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NET_INT_RATE The loan gross interest rate 4 Max length of 6 6
less the service fee rate as
reported by the Servicer.
----------------------------------------------------------------------------------------------------------
SERV_FEE_RATE The servicer's fee rate for a 4 Max length of 6 6
loan as reported by the
Servicer.
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SERV_FEE_AMT The servicer's fee amount for a 2 No commas(,) or dollar 11
loan as reported by the signs ($)
Servicer.
----------------------------------------------------------------------------------------------------------
NEW_PAY_AMT The new loan payment amount as 2 No commas(,) or dollar 11
reported by the Servicer. signs ($)
----------------------------------------------------------------------------------------------------------
NEW_LOAN_RATE The new loan rate as reported 4 Max length of 6 6
by the Servicer.
----------------------------------------------------------------------------------------------------------
ARM_INDEX_RATE The index the Servicer is using 4 Max length of 6 6
to calculate a forecasted rate.
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ACTL_BEG_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar 11
balance at the beginning of the signs ($)
processing cycle.
----------------------------------------------------------------------------------------------------------
EXH. I-1
ACTL_END_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar 11
balance at the end of the signs ($)
processing cycle.
----------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date at the end of MM/DD/YYYY 10
processing cycle that the
borrower's next payment is due
to the Servicer, as reported by
Servicer.
----------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_1 The first curtailment amount to 2 No commas(,) or dollar 11
be applied. signs ($)
----------------------------------------------------------------------------------------------------------
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(,) or dollar 11
first curtailment amount, if signs ($)
applicable.
----------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_2 The second curtailment amount 2 No commas(,) or dollar 11
to be applied. signs ($)
----------------------------------------------------------------------------------------------------------
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(,) or dollar 11
second curtailment amount, if signs ($)
applicable.
----------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_3 The third curtailment amount to 2 No commas(,) or dollar 11
be applied. signs ($)
----------------------------------------------------------------------------------------------------------
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(,) or dollar 11
third curtailment amount, if signs ($)
applicable.
----------------------------------------------------------------------------------------------------------
PIF_AMT The loan "paid in full" amount 2 No commas(,) or dollar 11
as reported by the Servicer. signs ($)
----------------------------------------------------------------------------------------------------------
PIF_DATE The paid in full date as MM/DD/YYYY 10
reported by the Servicer.
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ACTION_CODE The standard FNMA numeric code used Action Code Key: 2
to indicate the default/delinquent 15=Bankruptcy,
status of a particular loan. 30=Foreclosure, , 60=PIF,
63=Substitution,
65=Repurchase,70=REO
----------------------------------------------------------------------------------------------------------
INT_ADJ_AMT The amount of the interest 2 No commas(,) or dollar 11
adjustment as reported by the signs ($)
Servicer.
----------------------------------------------------------------------------------------------------------
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment 2 No commas(,) or dollar 11
signs ($)
amount, if applicable.
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NON_ADV_LOAN_AMT The Non Recoverable Loan 2 No commas(,) or dollar 11
Amount, if applicable. signs ($)
----------------------------------------------------------------------------------------------------------
LOAN_LOSS_AMT The amount the Servicer is 2 No commas(,) or dollar 11
passing as a loss, if signs ($)
applicable.
----------------------------------------------------------------------------------------------------------
SCHED_BEG_PRIN_BAL The scheduled outstanding 2 No commas(,) or dollar 11
principal amount due at the signs ($)
beginning of the cycle date to
be passed through to investors.
----------------------------------------------------------------------------------------------------------
SCHED_END_PRIN_BAL The scheduled principal balance 2 No commas(,) or dollar 11
due to investors at the end of signs ($)
a processing cycle.
----------------------------------------------------------------------------------------------------------
SCHED_PRIN_AMT The scheduled principal amount 2 No commas(,) or dollar 11
as reported by the Servicer for signs ($)
the current cycle -- only
applicable for Scheduled/
Scheduled Loans.
----------------------------------------------------------------------------------------------------------
SCHED_NET_INT The scheduled gross interest 2 No commas(,) or dollar 11
amount less the service fee signs ($)
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 11
collected by the Servicer for signs ($)
the current reporting cycle --
only applicable for
Actual/Actual Loans.
----------------------------------------------------------------------------------------------------------
ACTL_NET_INT The actual gross interest 2 No commas(,) or dollar 11
amount less the service fee signs ($)
amount for the current
reporting cycle as reported by
the Servicer -- only applicable
for Actual/Actual Loans.
----------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ AMT The penalty amount received 2 No commas(,) or dollar 11
when a borrower prepays on his signs ($)
loan as reported by the
Servicer.
----------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ WAIVED The prepayment penalty amount 2 No commas(,) or dollar 11
for the loan waived by the signs ($)
servicer.
----------------------------------------------------------------------------------------------------------
MOD_DATE The Effective Payment Date of MM/DD/YYYY 10
the Modification for the loan.
----------------------------------------------------------------------------------------------------------
MOD_TYPE The Modification Type. Varchar - value can be 30
alpha or
numeric
----------------------------------------------------------------------------------------------------------
DELINQ_P&I_ADVANCE_AMT The current outstanding 2 No commas(,) or dollar 11
principal and interest advances signs ($)
made by Servicer.
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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.
(aa)
(bb) 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.
(cc) 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. III 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 ( ).
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)
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 ______________(18b)
(18a) HUD Part A
HUD Part B
(19) Pool Insurance Proceeds ______________
(19)
(20) Proceeds from Sale of Acquired Property ______________
(20)
(21) Other (itemize) ______________(21)
(21) _________________________________________ ______________(21)
(21)
Total Credits $______________(22)
Total Realized Loss (or Amount of Gain) $______________(23)
Escrow Disbursement Detail
-------------------------------------------------------------------------------
Type Date Paid Period of Total Paid Base Penalties Interest
(Tax /Ins.) Coverage Amount
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EXHIBIT A-1
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the
"Agreement"), among
[IDENTIFY PARTIES]
I, ________________________________, the _____________________ of PHH 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 14 to the Third Amended and
Restated Mortgage Loan Flow Purchase Agreement dated January 1, 2006 (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. B-1-2
EXHIBIT B-1
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria";
--------------------------------------------------------------------------------
Servicing Criteria Applicable
Servicing
Criteria
--------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------
General Servicing Considerations
--------------------------------------------------------------------------------
Policies and procedures are instituted to monitor any
performance or other triggers and events of default in X
1122(d)(1)(i) accordance with the transaction 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
1122(d)(1)(ii) servicing activities.
--------------------------------------------------------------------------------
Any requirements in the transaction agreements
to maintain a back-up servicer for the mortgage
1122(d)(1)(iii) loans are maintained.
--------------------------------------------------------------------------------
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
1122(d)(1)(iv) with the terms of the transaction agreements.
--------------------------------------------------------------------------------
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
1122(d)(2)(i) specified in the transaction agreements.
--------------------------------------------------------------------------------
Disbursements made via wire transfer on behalf of
an obligor or to an investor are made only by X
1122(d)(2)(ii) authorized personnel.
--------------------------------------------------------------------------------
Advances of funds or guarantees regarding collections,
cash flows or distributions, and any interest or other X
fees charged for such advances, are made, reviewed and
1122(d)(2)(iii) approved as specified in the transaction agreements.
--------------------------------------------------------------------------------
EXH. B-1-1
--------------------------------------------------------------------------------
Servicing Criteria Applicable
Servicing
Criteria
--------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------
The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained X
(e.g., with respect to commingling of cash) as set forth
1122(d)(2)(iv) in the transaction agreements.
--------------------------------------------------------------------------------
Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this criterion,
"federally insured depository institution" with X
respect to a foreign financial institution means a
foreign financial institution that meets the requirements
1122(d)(2)(v) of Rule 13k-1(b)(1) of the Securities Exchange Act.
--------------------------------------------------------------------------------
Unissued checks are safeguarded so as to prevent
1122(d)(2)(vi) unauthorized access. X
--------------------------------------------------------------------------------
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 X
of days specified in the transaction
agreements; (C) reviewed and approved by someone
other than the person who prepared the
reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are
resolved within 90 calendar days of their
original identification, or such other number of
1122(d)(2)(vii) days specified in the transaction agreements.
--------------------------------------------------------------------------------
Investor Remittances and Reporting
---------------------------------------------------
EXH. B-1-2
--------------------------------------------------------------------------------
Servicing Criteria Applicable
Servicing
Criteria
--------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------
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
1122(d)(3)(i) serviced by the Servicer.
--------------------------------------------------------------------------------
Amounts due to investors are allocated and remitted
in accordance with timeframes, distribution priority X
1122(d)(3)(ii) and other terms set forth in the transaction agreements.
--------------------------------------------------------------------------------
Disbursements made to an investor are posted
within two business days to the Servicer's X
investor records, or such other number of days
1122(d)(3)(iii) specified in the transaction agreements.
--------------------------------------------------------------------------------
Amounts remitted to investors per the investor
reports agree with cancelled checks, or other X
1122(d)(3)(iv) form of payment, or custodial bank statements.
--------------------------------------------------------------------------------
Pool Asset Administration
--------------------------------------------------------------------------------
Collateral or security on mortgage loans is
maintained as required by the transaction X
1122(d)(4)(i) agreements or related mortgage loan documents.
--------------------------------------------------------------------------------
Mortgage loan and related documents are
safeguarded as required by the transaction X
1122(d)(4)(ii) agreements
--------------------------------------------------------------------------------
Any additions, removals or substitutions to the
asset pool are made, reviewed and approved in
accordance with any conditions or requirements
1122(d)(4)(iii) in the transaction agreements.
--------------------------------------------------------------------------------
EXH. B-1-3
--------------------------------------------------------------------------------
Servicing Criteria Applicable
Servicing
Criteria
--------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------
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
1122(d)(4)(iv) the related mortgage loan documents.
--------------------------------------------------------------------------------
The Servicer's records regarding the mortgage loans
agree with the Servicer's records with respect to X
1122(d)(4)(v) an obligor's unpaid principal balance.
--------------------------------------------------------------------------------
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
1122(d)(4)(vi) agreements and related pool asset documents.
--------------------------------------------------------------------------------
Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are X
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by the
1122(d)(4)(vii) transaction agreements.
--------------------------------------------------------------------------------
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
1122(d)(4)(viii) temporary (e.g., illness or unemployment).
--------------------------------------------------------------------------------
Adjustments to interest rates or rates of return
for mortgage loans with variable rates are computed X
1122(d)(4)(ix) based on the related mortgage loan documents.
--------------------------------------------------------------------------------
EXH. B-1-4
--------------------------------------------------------------------------------
Servicing Criteria Applicable
Servicing
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; X
(B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned
to the obligor within 30 calendar days of full repayment
of the related mortgage loans, or such other number of
1122(d)(4)(x) days specified in the transaction agreements.
--------------------------------------------------------------------------------
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, X
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
1122(d)(4)(xi) in the transaction agreements.
--------------------------------------------------------------------------------
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
1122(d)(4)(xii) obligor's error or omission.
--------------------------------------------------------------------------------
Disbursements made on behalf of an obligor are
posted within two business days to the obligor's X
records maintained by the servicer, or such other
1122(d)(4)(xiii) number of days specified in the transaction agreements.
--------------------------------------------------------------------------------
Delinquencies, charge-offs and uncollectible
accounts are recognized and recorded in X
1122(d)(4)(xiv) accordance with the transaction agreements.
--------------------------------------------------------------------------------
Any external enhancement or other support,
identified in Item 1114(a)(1) through (3) or
Item 1115 of Regulation AB, is maintained as set
1122(d)(4)(xv) forth in the transaction agreements.
--------------------------------------------------------------------------------
EXH. B-1-5
[PHH MORTGAGE CORPORATION]
[NAME OF SUBSERVICER]
Date: ____________________________________
By: ____________________________________
Name:
Title:
EXH. B-1-6
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 [13.03(d)][13.03(e)][13.03(f)] of the Third
Amended and Restated Mortgage Loan Flow Purchase, Sale & Servicing Agreement,
dated as of [date], as amended by the Assignment, Assumption and Recognition
Agreement dated as of September 1, 2006 among Xxxxxx Xxxxxxx Capital I Inc.,
as Depositor, PHH Mortgage Corporation, Xxxxx Fargo Bank, National
Association, as Master Servicer, and LaSalle Bank National Association as
Trustee. The Undersigned hereby notifies you that certain events have come to
our attention that [will][may] need to be disclosed on Form [ ].
Description of Additional Form [ ] Disclosure:
List of Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any inquiries related to this notification should be directed to [ ],
phone number: [ ]; email address: [ ].
[NAME OF PARTY]
as [role]
By: __________________
Name:
Title:
EXH. B-1-7
EXH. B-1-8
