Exhibit 99.13b
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EXECUTION COPY
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AMENDED AND RESTATED REGULATION AB COMPLIANCE ADDENDUM
TO SELLER'S PURCHASE, WARRANTIES AND SERVICING AGREEMENT
(Servicing-retained)
This Amended and Restated Regulation AB Compliance Addendum (this "Reg AB
Addendum"), dated as of April 17, 2006, by and between Xxxxxx Xxxxxxx Mortgage
Capital Inc. (the "Purchaser") and Wachovia Mortgage Corporation (the
"Company"), to that certain Seller's Purchase, Warranties and Servicing
Agreement, dated as of September 1, 2004, by and between the Company and the
Purchaser (as amended, modified or supplemented, the "Agreement").
WITNESSETH
WHEREAS, the Company and the Purchaser have previously agreed to adopt an
addendum to the Agreement (the "Original Reg AB Addendum") to reflect the
intention of the parties to comply with Regulation AB;
WHEREAS, the Company and the Purchaser have agreed to amend and restate
the terms of the Original Reg AB Addendum.
NOW, THEREFORE, in consideration of the mutual promises and mutual
obligations set forth herein, the Company and the Purchaser hereby agree as
follows:
ARTICLE I
DEFINED TERMS
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Agreement. The following terms shall have the
meanings set forth below, unless the context clearly indicates otherwise:
Commission: The United States Securities and Exchange Commission.
Company Information: As defined in Section 2.07(a).
Depositor: With respect to any Securitization Transaction, the Person
identified in writing to the Company by the Purchaser as depositor for such
Securitization Transaction.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Indemnified Party: Each party described in the first sentence of Section
2.07(a) hereof.
Master Servicer: With respect to any Securitization Transaction, the
"master servicer," if any, identified in the related transaction documents.
Qualified Correspondent: Any Person from which the Company purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Company and
such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale to
the Company, in accordance with underwriting guidelines designated by the
Company ("Designated Guidelines") or guidelines that do not vary materially
from such Designated Guidelines; (ii) such Mortgage Loans were in fact
underwritten as described in clause (i) above and were acquired by the Company
within 270 days after origination; (iii) either (x) the Designated Guidelines
were, at the time such Mortgage Loans were originated, used by the Company in
origination of mortgage loans of the same type as the Mortgage Loans for the
Company's own account or (y) the Designated Guidelines were, at the time such
Mortgage Loans were underwritten, designated by the Company on a consistent
basis for use by lenders in originating mortgage loans to be purchased by the
Company; and (iv) the Company employed, at the time such Mortgage Loans were
acquired by the Company, pre-purchase or post-purchase quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through particular
channels) designed to ensure that Persons from which it purchased mortgage
loans properly applied the underwriting criteria designated by the Company.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a sale
or other transfer of some or all of the Mortgage Loans directly or indirectly
by the Purchaser to an issuing entity in connection with an issuance of
publicly offered or privately placed, rated or unrated mortgage-backed
securities or (2) an issuance of publicly offered or privately placed, rated or
unrated securities, the payments on which are determined primarily by reference
to one or more portfolios of residential mortgage loans consisting, in whole or
in part, of some or all of the Mortgage Loans.
Servicer: As defined in Section 2.03(c).
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB for which the Company is responsible in its capacity as Servicer
as identified on Exhibit B hereto, provided that such Exhibit B may be amended
from time to time to reflect changes in Regulation AB.
Sponsor: With respect to any Securitization Transaction, the Person
identified in writing to the Company by the Purchaser as sponsor for such
Securitization Transaction.
Static Pool Information: Static pool information as described in Item
1l05(a)(l)-(3) and 1105(c) of Regulation AB.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed
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securities market) of Mortgage Loans but performs one or more discrete
functions identified in Item l122(d) of Regulation AB with respect to Mortgage
Loans under the direction or authority of the Company or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of the
Company or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions identified in Item 1122(d) of Regulation AB
that are required to be performed by the Company under this Agreement or any
Reconstitution Agreement.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Company.
Whole Loan Transfer: Any sale or transfer by the Purchaser of some or all
of the Mortgage Loans, other than a Securitization Transaction.
ARTICLE II
COMPLIANCE WITH REGULATION AB
Section 2.01. Intent of the Parties; Reasonableness.
The Purchaser and the Company acknowledge and agree that the purpose of
Article II of this Reg AB Addendum is to facilitate compliance by the Purchaser
and any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission and that the provisions of this Reg AB Addendum
shall be applicable to all Mortgage Loans included in a Securitization
Transaction closing on or after January 1, 2006, regardless whether the
Mortgage Loans were purchased by the Purchaser from the Company prior to the
date hereof. Although Regulation AB is applicable by its terms only to
offerings of asset-backed securities that are registered under the Securities
Act, the Company acknowledges that investors in privately offered securities
may require that the Purchaser or any Depositor provide comparable disclosure
in unregistered offerings. References in this Agreement to compliance with
Regulation AB include provision of comparable disclosure in private offerings.
Neither the Purchaser nor any Depositor shall exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the
Commission thereunder (or the provision in a private offering of disclosure
comparable to that required under the Securities Act). The Company acknowledges
that interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with reasonable requests made by
the Purchaser or any Depositor in good faith for delivery of information under
these provisions on the basis of evolving interpretations of Regulation AB. In
connection with any Securitization Transaction, the Company shall cooperate
with the Purchaser to deliver to the Purchaser (including any of its assignees
or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Purchaser or any Depositor to permit the Purchaser or such
Depositor to
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comply with the provisions of Regulation AB, together with such disclosures
relating to the Company, any Subservicer, any Third-Party Originator and the
Mortgage Loans, or the servicing of the Mortgage Loans, reasonably believed by
the Purchaser or any Depositor to be necessary in order to effect such
compliance.
The Purchaser and the Company also acknowledge and agree Section
2.02(a)(i)-(v), Section 2.03(c), (e) and (f), Section 2.04, Section 2.05 and
Section 2.06 of this Reg AB Addendum shall only be applicable with respect to
any Mortgage Loan if the Company (or Subservicer, if any) services such
Mortgage Loan following the closing date of a related Securitization
Transaction. The Purchaser and the Company also acknowledge and agree that this
Reg AB Addendum is intended to supplement the terms of the Agreement and, to
the extent inconsistent, the rights and obligations under the Agreement shall
continue to apply with respect to any Reconstitution (as defined in the
Agreement) that is not covered by the definition of "Securitization
Transaction" in this Reg AB Addendum; provided, however, that the requirement
to provide an accountants' report pursuant to Section 6.05 of the Agreement
shall be deemed satisfied with respect to any Reconstitution that occurs prior
to, on or following the date hereof by providing an accountants' attestation
that satisfies the requirements of Section 2.05(a)(ii) of this Reg AB Addendum.
For purposes of this Reg AB Addendum, the term "Purchaser" shall refer to
Xxxxxx Xxxxxxx Mortgage Capital Inc. and its successors in interest and
assigns. In addition, any notice or request that must be "in writing" or
"written" may be made by electronic mail.
The Purchaser shall cooperate with the Company by providing timely notice
of requests for information under these provisions and by reasonably limiting
such requests to information necessary, in the Purchaser's reasonable judgment,
to comply with Regulation AB.
Section 2.02. Additional Representations and Warranties of the Company.
(a) The Company shall be deemed to represent to the Purchaser and to any
Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Section 2.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) the Company
is not aware and has not received notice that any default, early amortization
or other performance triggering event with respect to the Company has occurred
as to any other securitization due to any act or failure to act of the Company;
(ii) the Company has not been terminated as servicer in a residential mortgage
loan securitization, either due to a servicing default or to application of a
servicing performance test or trigger; (iii) no material noncompliance with the
applicable Servicing Criteria with respect to other securitizations of
residential mortgage loans involving the Company as servicer has been disclosed
or reported by the Company; (iv) no material changes to the Company's policies
or procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreement for mortgage loans of a type similar
to the Mortgage Loans have occurred during the three-year period immediately
preceding the related Securitization Transaction; (v) there are no aspects of
the Company's financial condition that are reasonably expected to have a
material adverse effect on the performance by the Company of its servicing
obligations under this Agreement or any Reconstitution Agreement; (vi) there
are no material legal or governmental proceedings pending (or known to be
contemplated) against the Company, any Subservicer or any Third-Party
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Originator; and (vii) there are no affiliations, relationships or transactions
relating to the Company, any Subservicer or any Third-Party
Originator with respect to any Securitization Transaction and any party thereto
identified in writing to the Company by the related Depositor of a type
described in Item 1119 of Regulation AB.
The Company hereby represents and warrants that it is unable without
unreasonable effort or expense to provide (i) Static Pool Information with
respect to mortgage loans that the Company has sold on a servicing-released
basis, other than such information as relates to "original characteristics" as
described in Item 1105(a)(3)(iii) of Regulation AB and (ii) Static Pool
Information regarding cumulative losses with respect to any mortgage loans
originated prior to January 1, 2006.
(b) If so requested in writing by the Purchaser or any Depositor on any
date following the date on which information is first provided to the Purchaser
or any Depositor under Section 2.03, the Company shall use its reasonable best
efforts to within five (5) Business Days, but in no event later than ten (10)
Business Days, following such request confirm in writing the accuracy of the
representations and warranties set forth in paragraph (a) of this Section or,
if any such representation and warranty is not accurate as of the date of such
request, provide reasonably adequate disclosure of the pertinent facts, in
writing, to the requesting party.
Section 2.03. Information to Be Provided by the Company.
In connection with any Securitization Transaction, the Company shall use
its reasonable best efforts to (i) within five (5) Business Days, but in no
event later than ten (10) Business Days, following written request by the
Purchaser or any Depositor, provide to the Purchaser and such Depositor (or, as
applicable, cause each Third-Party Originator and each Subservicer to provide),
in writing and in form and substance reasonably satisfactory to the Purchaser
and such Depositor, the information and materials specified in paragraphs (a),
(b), (c) and (f) of this Section, and (ii) as promptly as practicable following
notice to or discovery by the Company, provide to the Purchaser and any
Depositor (in writing and in form and substance reasonably satisfactory to the
Purchaser and such Depositor) the information specified in paragraph (d) of
this Section.
(a) If so requested in writing by the Purchaser or any Depositor, the
Company shall provide such information regarding (i) the Company, as originator
of the Mortgage Loans (including as an acquirer of Mortgage Loans from a
Qualified Correspondent), or (ii) each Third-Party Originator, and (iii) as
applicable, each Subservicer, as is reasonably requested for the purpose of
compliance with Items 1103(a)(l), 1105, 1110, 1117 and 1119 of Regulation AB.
Such information shall include, at a minimum (so long as required by Regulation
AB):
(A) the originator's form of organization;
(B) a description of the originator's origination program and how
long the originator has been engaged in originating residential mortgage
loans, which description shall include a discussion of the originator's
experience in originating mortgage loans of a similar type as the
Mortgage Loans; information regarding the size and composition of the
originator's origination portfolio; and information that may be material,
in the good
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faith judgment of the Purchaser or any Depositor, to an analysis of the
performance of the Mortgage Loans, including the originators'
credit-granting or underwriting criteria for mortgage loans of similar
type(s) as the Mortgage Loans and such other information as the Purchaser
or any Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
(C) a description of any legal or governmental proceedings pending
(or known to be contemplated) against the Company, each Third-Party
Originator and each Subservicer that would be material to
securityholders; and
(D) a description of any affiliation or relationship between the
Company, each Third-Party Originator, each Subservicer and any of the
following parties to a Securitization Transaction, as such parties are
identified to the Company by the Purchaser or any Depositor in writing in
advance of such Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) If so requested in writing by the Purchaser or any Depositor, the
Company shall provide (or, as applicable, cause each Third-Party Originator to
provide) vintage origination year Static Pool Information with respect to
mortgage loans of a similar type as the Mortgage Loans (as reasonably
identified by the Purchaser as provided below) originated by (i) the Company,
if the Company is an originator of Mortgage Loans (including as an acquirer of
Mortgage Loans from a Qualified Correspondent), and/or (ii) each Third-Party
Originator, but in each case only to the extent that (x) such mortgage loans
were originated after July 2004 and (y) (A) the Company has not sold such
mortgage loans on a servicing-released basis or (B) such information relates to
"original characteristics" as described in Item 1105(a)(3)(iii) of Regulation
AB. Notwithstanding the preceding sentence, the Company shall not be required
to provide Static Pool Information regarding cumulative losses with respect to
any mortgage loans originated prior to January 1, 2006. Such Static Pool
Information shall be prepared by the Company (or Third-Party Originator) on the
basis of its reasonable, good faith interpretation of the requirements of Item
1105(a)(2)-(3) of Regulation AB. To the extent that there is reasonably
available to the Company (or Third-Party Originator) Static Pool Information
with respect to more than one mortgage loan type, the Purchaser or any
Depositor shall be entitled to specify whether some or all of such information
shall be provided pursuant to this paragraph. The content of such Static Pool
Information may be in the form customarily provided by the Company, and need
not be customized for the Purchaser or any Depositor, except for such changes
as the Purchaser shall reasonably request to the extent necessary to comply
with Regulation AB. Such Static Pool Information for each vintage origination
year shall be presented in increments no less frequently than quarterly over
the life of the mortgage loans included in the vintage origination year. The
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most recent periodic increment must be as of a date no later than 135 days
prior to the date of the prospectus or other offering document in which the
Static Pool Information is to be included or incorporated by reference. The
Static Pool Information shall be provided in an electronic format that provides
a permanent record of the information provided, such as a portable document
format (pdf) file, or other such electronic format reasonably required by the
Purchaser or the Depositor, as applicable.
Promptly following notice or discovery of a material error in Static Pool
Information provided pursuant to the immediately preceding paragraph (including
an omission to include therein information required to be provided pursuant to
such paragraph), the Company shall provide corrected Static Pool Information to
the Purchaser or any Depositor, as applicable, in the same format in which
Static Pool Information was previously provided to such party by the Company,
subject to such time limits as mutually agreed to by the Company and the
Purchaser or the Depositor, as applicable.
If so requested in writing by the Purchaser or any Depositor, the Company
shall provide (or, as applicable, cause each Third-Party Originator to
provide), at the expense of the requesting party (to the extent of any
additional incremental expense associated with delivery pursuant to this Reg AB
Addendum), such statements and agreed-upon procedures letters of certified
public accountants reasonably acceptable to the Purchaser or Depositor, as
applicable, pertaining to Static Pool Information relating to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor shall reasonably
request. Such letters shall be addressed to and be for the benefit of such
parties as the Purchaser or such Depositor shall designate, which may include,
by way of example, any Sponsor, any Depositor and any broker dealer acting as
underwriter, placement agent or initial purchaser with respect to a
Securitization Transaction. Any such statement or letter may take the form of a
standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(c) If so requested in writing by the Purchaser or any Depositor with
respect to any Securitization Transaction for which 20% or more of the pool
assets (measured by cut-off date principal balance) are serviced by the Company
and any Subservicer, the Company shall provide such information regarding the
Company, as servicer of the Mortgage Loans, and each Subservicer (each of the
Company and each Subservicer, for purposes of this paragraph, a "Servicer"), as
is reasonably requested for the purpose of compliance with Item 1108 of
Regulation AB. Such information shall include, at a minimum (so long as
required by Regulation AB):
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been servicing
residential mortgage loans; a general discussion of the Servicer's
experience in servicing assets of any type as well as a more detailed
discussion of the Servicer's experience in, and procedures for, the
servicing function it will perform under the Agreement and any
Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer's portfolio of residential mortgage loans of a
type similar to the Mortgage Loans and information on factors related to
the Servicer that may be material, in the good
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faith judgment of the Purchaser or any Depositor, to any analysis of the
servicing of the Mortgage Loans or the related asset-backed securities,
as applicable, including, without limitation:
(1) whether any prior securitizations of mortgage loans of a
type similar to the Mortgage Loans involving the Servicer have
defaulted or experienced an early amortization or other performance
triggering event because of servicing during the three-year period
immediately preceding the related Securitization Transaction;
(2) the extent of outsourcing the Servicer utilizes;
(3) whether there has been previous disclosure of material
noncompliance with the applicable servicing criteria with respect
to other securitizations of residential mortgage loans involving
the Servicer as a servicer during the three-year period immediately
preceding the related Securitization Transaction;
(4) whether the Servicer has been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing
default or to application of a servicing performance test or
trigger; and
(5) such other information as the Purchaser or any Depositor
may reasonably request for the purpose of compliance with Item
1108(b)(2) of Regulation AB;
(C) a description of any material changes during the three-year
period immediately preceding the related Securitization Transaction to
the Servicer's policies or procedures with respect to the servicing
function it will perform under the Agreement and any Reconstitution
Agreements for mortgage loans of a type similar to the Mortgage Loans;
(D) information regarding the Servicer's financial condition, to
the extent that there is a material risk that an adverse financial event
or circumstance involving the Servicer could have a material adverse
effect on the performance by the Company of its servicing obligations
under the Agreement or any Reconstitution Agreement;
(E) information regarding advances made by the Servicer on the
Mortgage Loans and the Servicer's overall servicing portfolio of
residential mortgage loans for the three-year period immediately
preceding the related Securitization Transaction, which may be limited to
a statement by an authorized officer of the Servicer to the effect that
the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement
would not be accurate, information regarding the percentage and type of
advances not made as required, and the reasons for such failure to
advance;
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(F) a description of the Servicer's processes and procedures
designed to address any special or unique factors involved in servicing
loans of a similar type as the Mortgage Loans;
(G) a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as through
liquidation of mortgaged properties, sale of defaulted mortgage loans or
workouts; and
(H) information as to how the Servicer defines or determines
delinquencies and charge-offs, including the effect of any grace period,
re-aging, restructuring, partial payments considered current or other
practices with respect to delinquency and loss experience.
(d) For the purpose of satisfying its reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, the Company
shall (or shall cause each Subservicer and Third-Party Originator to) (i)
promptly notify the Purchaser, any Master Servicer and any Depositor in writing
of (A) any litigation or governmental proceedings pending against the Company,
any Subservicer or any Third-Party Originator that would be material to
securityholders, (B) any affiliations or relationships that develop following
the closing date of a Securitization Transaction between the Company, any
Subservicer or any Third-Party Originator and any of the parties specified in
clause (D) of paragraph (a) of this Section (and any other parties identified
in writing by the requesting party) with respect to such Securitization
Transaction, but only to the extent that such affiliations or relationships do
not include the Purchaser, Depositor or any of their respective affiliates as a
party, (C) any Event of Default under the terms of the Agreement or any
Reconstitution Agreement, and (D) any merger, consolidation or sale of
substantially all of the assets of the Company and (E) the Company's entry into
an agreement with a Subservicer to perform or assist the Company with the
performance of any of the Company's obligations under the Agreement or any
Reconstitution Agreement, and (ii) provide to the Purchaser and any Depositor a
description of such events, proceedings, affiliations or relationships.
(e) As a condition to the succession to the Company or any Subservicer as
servicer or subservicer under the Agreement or any Reconstitution Agreement by
any Person (i) into which the Company or such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Company or
any Subservicer, the Company shall provide to the Purchaser and any Depositor,
at least 15 calendar days prior to the effective date of such succession or
appointment, (x) written notice to the Purchaser and any Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, all information
reasonably requested in writing by the Purchaser or any Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to any class of asset-backed securities.
(f) In addition to such information as the Company, as servicer, is
obligated to provide pursuant to other provisions of the Agreement, not later
than ten (10) days prior to the deadline for the filing of any distribution
report on Form 10-D in respect of any Securitization Transaction that includes
any of the Mortgage Loans serviced by the Company or any Subservicer, the
Company or such Subservicer, as applicable, shall, to the extent the Company or
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such Subservicer has knowledge, provide to the party responsible for filing
such report (including, if applicable, the Master Servicer) notice of the
occurrence of any of the following events along with all information, data, and
materials related thereto as may be required to be included in the related
distribution report on Form 10-D (as specified in the provisions of Regulation
AB referenced below):
(i) any material modifications, extensions or waivers of pool asset
terms, fees, penalties or payments during the distribution period or that
have cumulatively become material over time (Item 1121(a)(11) of
Regulation AB);
(ii) material breaches of pool asset representations or warranties
or transaction covenants (Item 1121(a)(12) of Regulation AB); and
(iii) information regarding any pool asset changes (such as
additions, substitutions or repurchases), and any material changes in
origination, underwriting or other criteria for acquisition or selection
of pool assets (Item 1121(a)(14) of Regulation AB).
(g) The Company shall provide to the Purchaser, any Master Servicer and
any Depositor, evidence of the authorization of the Person signing any
certification or statement, copies or other evidence of Fidelity Bond Insurance
and Errors and Omission Insurance policy, financial information and reports,
and such other information related to the Company or any Subservicer or the
Company or such Subservicer's performance hereunder as may be reasonably
requested by the Purchaser, any Master Servicer or any Depositor.
(h) Any written notice to be provided pursuant to Sections 2.03(d), (e)
or (g) hereof shall be in the form of the Additional Disclosure Notification
attached hereto as Exhibit C.
Section 2.04. Servicer Compliance Statement.
On or before March 1, but in no event later than March 15, of each
calendar year, commencing in 2007, the Company shall deliver to the Purchaser
and any Depositor a statement of compliance addressed to the Purchaser and such
Depositor and signed by an authorized officer of the Company, to the effect
that (i) a review of the Company's activities during the immediately preceding
calendar year (or applicable portion thereof) and of its performance under the
Agreement and any applicable Reconstitution Agreement during such period has
been made under such officer's supervision, and (ii) to the best of such
officers' knowledge, based on such review, the Company has fulfilled all of its
obligations under the Agreement and any applicable Reconstitution Agreement in
all material respects throughout such calendar year (or applicable portion
thereof) or, if there has been a failure to fulfill any such obligation in any
material respect, specifically identifying each such failure known to such
officer and the nature and the status thereof.
Section 2.05. Report on Assessment of Compliance and Attestation.
(a) On or before March 1, but in no event later than March 15, of each
calendar year, commencing in 2007, the Company shall:
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(i) deliver to the Purchaser and any Depositor a report (in form
and substance reasonably satisfactory to the Purchaser and such
Depositor; provided, however, that such report may be in the form
customarily provided by the Company, and need not be customized for the
Purchaser or such Depositor) regarding the Company's assessment of
compliance with the Servicing Criteria during the immediately preceding
calendar year, as required under Rules 13a-18 and 15d-18 of the Exchange
Act and Item 1122 of Regulation AB. Such report shall be addressed to the
Purchaser and such Depositor and signed by an authorized officer of the
Company, and shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit B hereto delivered to
the Purchaser concurrently with the execution of this Reg AB Addendum;
(ii) deliver to the Purchaser and any Depositor a report of a
registered public accounting firm reasonably acceptable to the Purchaser
and such Depositor that attests to, and reports on, the assessment of
compliance made by the Company and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules 1-02(a)(3)
and 2-02(g) of Regulation S-X under the Securities Act and the Exchange
Act;
(iii) cause each Subservicer, and each Subcontractor determined by
the Company pursuant to Section 2.06(b) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, to
deliver to the Purchaser and any Depositor an assessment of compliance
and accountants' attestation as and when provided in paragraphs (a) and
(b) of this Section; and
(iv) deliver, and cause each Subservicer and Subcontractor
described in clause (iii) above to deliver, to the Purchaser, the Master
Servicer, any Depositor and any other Person that will be responsible for
signing the certification (a "Sarbanes Certification") required by Rules
13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to Section 302
of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed issuer
with respect to a Securitization Transaction a certification, signed by
an appropriate officer of the Company, in the form attached hereto as
Exhibit A. In addition to providing the Sarbanes Certification, the
Servicer shall also cooperate with the Depositor and provide such
additional information as the Depositor may reasonably request with
respect thereto.
The Company acknowledges that the parties identified in clause (a)(iv) above
may rely on the certification provided by the Company pursuant to such clause
in signing a Sarbanes Certification and filing such with the Commission.
Neither the Purchaser nor any Depositor will request delivery of a
certification under clause (a)(iv) above unless a Depositor is required under
the Exchange Act to file an annual report on Form 10-K with respect to an
issuing entity whose asset pool includes Mortgage Loans.
(b) Each assessment of compliance provided by a Subservicer pursuant to
Section 2.05(a)(iii) shall address each of the Servicing Criteria specified on
a certification substantially in the form of Exhibit B hereto delivered to the
Purchaser concurrently with the execution of this Reg AB Addendum or, in the
case of a Subservicer subsequently appointed as such, on or prior to the date
of such appointment. An assessment of compliance provided by a Subcontractor
pursuant to Section 2.05(a)(iii) need not address any elements of the Servicing
Criteria other than those specified by the Company pursuant to Section 2.06.
11
Section 2.06. Use of Subservicers and Subcontractors.
The Company shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Company as servicer under
the Agreement or any Reconstitution Agreement unless the Company complies with
the provisions of paragraph (a) of this Section. The Company shall not hire or
otherwise utilize the services of any Subcontractor, and shall not authorize
any Subservicer to hire or otherwise utilize the services of any Subcontractor,
to fulfill any of the obligations of the Company as servicer under the
Agreement or any Reconstitution Agreement unless the Company complies with the
provisions of paragraph (b) of this Section.
(a) The Company shall not hire or otherwise utilize the services of any
Subservicer with respect to the Mortgage Loans without giving the Purchaser or
its designee fifteen (15) calendar days' advance written notice of the
effective date of such hiring or utilization of a Subservicer, followed by
written confirmation of such hiring or utilization of a Subservicer on the
effective date of such engagement and indicating the circumstances surrounding
such hiring or utilization. Any notices required by this Subsection 2.06(a)
shall be sent via telecopier or certified or registered mail to the addresses
set forth below: Xxxx X. Xxxxxxxx, Servicer Oversight Group, 0000 X-Xxx Xxxxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, Telecopy: 000-000-0000, and emailed to:
xxxxx_xxxxxxxx_xxxxxx@xxxxxxxxxxxxx.xxx, with a copy to Xxxxxxx Xxxxxx,
Cadwalader, Xxxxxxxxxx & Xxxx, LLP, Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, Telecopy: 000-000-0000, Email: xxxxxxx.xxxxxx@xxx.xxx (or such
other address as such Person may otherwise specify to Company). The Company
shall cause any Subservicer used by the Company (or by any Subservicer) for the
benefit of the Purchaser and any Depositor to comply with the provisions of
this Section and with Subsections 2.02, 2.03(c), (e), (f) and (g), 2.04, 2.05,
2.06(a) and 2.07 of this Reg AB Addendum to the same extent as if such
Subservicer were the Company, and to provide the information required with
respect to such Subservicer under Subsection 2.03(d) of this Reg AB Addendum.
The Company shall be responsible for obtaining from each Subservicer and
delivering to the Purchaser and any Depositor any servicer compliance statement
required to be delivered by such Subservicer under Subsection 2.04, any
assessment of compliance and attestation required to be delivered by such
Subservicer under Subsection 2.05 and any certification required to be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Subsection 2.05 as and when required to be delivered.
(b) It shall not be necessary for the Company to seek the consent of the
Purchaser or any Depositor to the utilization of any Subcontractor. The Company
shall promptly upon written request provide to the Purchaser and any Depositor
(or any designee of the Depositor, such as a master servicer or administrator)
a written description (in form and substance reasonably satisfactory to the
Purchaser and such Depositor) of the role and function of each Subcontractor
utilized by the Company or any Subservicer, specifying (i) the identity of each
such Subcontractor that is "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB as determined by the Company and (ii)
which elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to clause (i) of
this paragraph.
As a condition to the utilization of any Subcontractor determined to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Company shall
12
cause any such Subcontractor used by the Company (or by any Subservicer) for
the benefit of the Purchaser and any Depositor to comply with the provisions of
Sections 2.05 and 2.07 of this Reg AB Addendum to the same extent as if such
Subcontractor were the Company. The Company shall be responsible for obtaining
from each Subcontractor and delivering to the Purchaser and any Depositor any
assessment of compliance and attestation required to be delivered by such
Subcontractor under Section 2.05, in each case as and when required to be
delivered.
Section 2.07. Indemnification; Remedies.
(a) The Company shall indemnify the Purchaser, each affiliate of the
Purchaser, and each of the following parties participating in a Securitization
Transaction: each Sponsor; each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with
respect to such Securitization Transaction; each broker dealer acting as
underwriter, placement agent or initial purchaser, each Person who controls any
of such parties or the Depositor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective present
and former directors, officers, employees and agents of each of the foregoing
and of the Depositor, and shall hold each of them harmless from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or
alleged to be contained in any information, report, certification,
accountants' letter or other material provided in written or electronic
form under this Article II by or on behalf of the Company, or provided
under this Article II by or on behalf of any Subservicer, Subcontractor
or Third-Party Originator (collectively, the "Company Information"), or
(B) the omission or alleged omission to state in the Company Information
a material fact required to be stated in the Company Information or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, by
way of clarification, that clause (B) of this paragraph shall be
construed solely by reference to the Company Information and not to any
other information communicated in connection with a sale or purchase of
securities, without regard to whether the Company Information or any
portion thereof is presented together with or separately from such other
information;
(ii) any breach by the Company under this Article II, including
particularly any failure by the Company, any Subservicer, any
Subcontractor or any Third-Party Originator to deliver any information,
report, certification, accountants' letter or other material when and as
required, under this Article II, including any failure by the Company to
identify pursuant to Section 2.06(b) any Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set
forth in Section 2.02(a) or in a writing furnished pursuant to Section
2.02(b) and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that
13
such breach is not cured by such closing date, or any breach by the
Company of a representation or warranty in a writing furnished pursuant
to Section 2.02(b) to the extent made as of a date subsequent to such
closing date; or
(iv) negligence, bad faith or willful misconduct of the Company in
connection with its performance under this Article II.
If the indemnification provided for herein is unavailable or insufficient
to hold harmless an Indemnified Party, then the Company agrees that it shall
contribute to the amount paid or payable by such Indemnified Party as a result
of any losses, damages, penalties, fines, forfeitures, legal fees and expenses
and related costs, judgments and any other costs, fees and expenses incurred by
such Indemnified Party in such proportion as is appropriate to reflect the
relative fault of such Indemnified Party on the one hand and the Company, any
Subservicer, any Subcontractor or any Third-Party Originator on the other.
In the case of any failure of performance described in clause (a)(ii) of
this Section, the Company shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with
respect to such Securitization Transaction, for all costs reasonably incurred
by each such party in order to obtain the information, report, certification,
accountants' letter or other material not delivered as required by the Company,
any Subservicer, any Subcontractor or any Third-Party Originator.
This indemnification shall survive the termination of this Agreement or
the termination of any party to this Agreement.
(b) (i) Any failure by the Company, any Subservicer, any Subcontractor or
any Third-Party Originator to deliver any information, report, certification,
accountants' letter or other material when and as required under this Article
II, or any breach by the Company of a representation or warranty set forth in
Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made
as of a date prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by such closing date,
or any breach by the Company of a representation or warranty in a writing
furnished pursuant to Section 2.02(b) to the extent made as of a date
subsequent to such closing date, shall, except as provided in clause (ii) of
this paragraph, immediately and automatically, without notice or grace period,
constitute an Event of Default with respect to the Company under the Agreement
and any applicable Reconstitution Agreement, and shall entitle the Purchaser or
Depositor, as applicable, in its sole discretion to terminate the rights and
obligations of the Company as servicer under the Agreement and/or any
applicable Reconstitution Agreement without payment (notwithstanding anything
in this Agreement or any applicable Reconstitution Agreement to the contrary)
of any compensation to the Company (and if the Company is servicing any of the
Mortgage Loans in a Securitization Transaction, appoint a successor servicer
reasonably acceptable to the Master Servicer for such Securitization
Transaction); provided that to the extent that any provision of the Agreement
and/or any applicable Reconstitution Agreement expressly provides for the
survival of certain rights or obligations following termination of the Company
as servicer, such provision shall be given effect.
14
(ii) Any failure by the Company, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Section 2.04 or 2.05,
including (except as provided below) any failure by the Company to
identify pursuant to Section 2.06(b) any Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB,
which continues unremedied for ten calendar days after the date on which
such information, report, certification or accountants' letter was
required to be delivered shall constitute an Event of Default with
respect to the Company under the Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or Depositor,
as applicable, in its sole discretion to terminate the rights and
obligations of the Company as servicer under the Agreement and/or any
applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement to the contrary) of any compensation to the
Company; provided that to the extent that any provision of the Agreement
and/or any applicable Reconstitution Agreement expressly provides for the
survival of certain rights or obligations following termination of the
Company as servicer, such provision shall be given effect.
Neither the Purchaser nor any Depositor shall be entitled to terminate
the rights and obligations of the Company pursuant to this subparagraph
(b)(ii) if a failure of the Company to identify a Subcontractor
"participating in the servicing function" within the meaning of Item 1122
of Regulation AB was attributable solely to the role or functions of such
Subcontractor with respect to mortgage loans other than the Mortgage
Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any
designee of the Purchaser, such as a master servicer) and any Depositor,
as applicable, for all reasonable expenses incurred by the Purchaser (or
such designee) or such Depositor, as such are incurred, in connection
with the termination of the Company as servicer and the transfer of
servicing of the Mortgage Loans to a successor servicer. The provisions
of this paragraph shall not limit whatever rights the Purchaser or any
Depositor may have under other provisions of the Agreement and/or any
applicable Reconstitution Agreement or otherwise, whether in equity or at
law, such as an action for damages, specific performance or injunctive
relief.
15
IN WITNESS WHEREOF, the Purchaser and the Company have caused their names
to be signed hereto by their respective officers thereunto duly authorized as
of the day and year first above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.,
as Purchaser
By:_____________________________________
Name:___________________________________
Title:__________________________________
WACHOVIA MORTGAGE CORPORATION,
as Company
By:_____________________________________
Name:___________________________________
Title:__________________________________
[Signature Page to Amended and Restated Regulation AB Compliance Addendum
(servicing-retained)]
EXHIBIT A
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the "Agreement"), among
[IDENTIFY PARTIES]
I, ________________________________, the _____________________ of
Wachovia Mortgage Corporation, certify to [the Purchaser], [the Depositor], and
the [Master Servicer] [Securities Administrator] [Trustee], and their officers,
with the knowledge and intent that they will rely upon this certification,
that:
(1) I have reviewed the servicer compliance statement of the
Company provided in accordance with Item 1123 of Regulation AB (the
"Compliance Statement"), the report on assessment of the Company's
compliance with the servicing criteria set forth in Item 1122(d) of
Regulation AB and identified as the responsibility of the Company on
Exhibit B to the Regulation AB Compliance Addendum to the Agreement (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and
15d-18 under Securities Exchange Act of 1934, as amended (the "Exchange
Act") and Item 1122 of Regulation AB (the "Servicing Assessment"), the
registered public accounting firm's attestation report provided in
accordance with Rules 13a-18 and 15d-18 under the Exchange Act and
Section 1122(b) of Regulation AB (the "Attestation Report"), and all
servicing reports, officer's certificates and other information relating
to the servicing of the Mortgage Loans by the Company during 200[ ] that
were delivered by the Company to the [Depositor] [Master Servicer]
[Securities Administrator] [Trustee] pursuant to the Agreement
(collectively, the "Company Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Company
Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee];
(4) I am responsible for reviewing the activities performed by the
Company as servicer under the Agreement, and based on my knowledge and
the compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Company has fulfilled its obligations
under the Agreement in all material respects; and
(5) The Compliance Statement required to be delivered by the
Company pursuant to the Agreement, and the Servicing Assessment and
Attestation Report required to be provided by the Company and by any
Subservicer or Subcontractor pursuant to the Agreement, have been
provided to the [Depositor] [Master Servicer]. Any material
instances of noncompliance described in such reports have been disclosed
to the [Depositor] [Master Servicer]. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such
reports.
Date:_________________________
By:___________________________
Name:_________________________
Title:________________________
A-2
EXHIBIT B
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria";
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Applicable
Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
-----------------------------------------------------------------------------------------------------------------------------------
Policies and procedures are instituted to monitor any performance or other X
1122(d)(1)(i) triggers and events of default in accordance with the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, policies X
and procedures are instituted to monitor the third party's performance and
compliance with such servicing activities.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer
for the mortgage loans are maintained.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party X
participating in the servicing function throughout the reporting period in the
amount of coverage required by and otherwise in accordance with the terms of the
transaction agreements.
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Cash Collection and Administration
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank X
accounts and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the transaction
agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor X
are made only by authorized personnel.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or X
distributions, and any interest or other fees charged for such advances, are
made, reviewed and approved as specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth in the X
transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
B-1
-----------------------------------------------------------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository X
institution as set forth in the transaction agreements. For purposes of this
criterion, "federally insured depository institution" with respect to a foreign
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1 (b)(1) of the Securities Exchange Act.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. X
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed securities X
related bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate; (B) prepared
within 30 calendar days after the bank statement cutoff date, or such other
number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than the person who
prepared the reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar days of their
original identification, or such other number of
days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are X
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide information calculated in
accordance with the terms specified in the transaction agreements; (C) are filed
with the Commission as required by its rules and regulations; and (D) agree with
investors' or the trustee's records as
to the total unpaid principal balance and number of mortgage loans serviced by
the Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with X
timeframes, distribution priority and other terms set forth in the transaction
agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the
Servicer's investor records, or such other number of days specified in the X
transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
B-2
-----------------------------------------------------------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled X
checks, or other form of payment, or custodial bank statements.
-----------------------------------------------------------------------------------------------------------------------------------
Pool Asset Administration
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the X
transaction agreements or related mortgage loan documents.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the X
transaction agreements
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed X
and approved in accordance with any conditions or requirements in the
transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with the X
related mortgage loan documents are posted to the Servicer's obligor records
maintained no more than two business days after receipt, or such other number of
days specified in the transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's X
records with respect to an obligor's unpaid principal balance.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans X
(e.g., loan modifications or re-agings) are made, reviewed and approved by
authorized personnel in accordance with the transaction agreements and related
pool asset documents.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications and X
deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are
initiated, conducted and
concluded in accordance with the timeframes or other requirements established by
the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
B-3
-----------------------------------------------------------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a X
mortgage loan is delinquent in accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and
describe the entity's activities in monitoring delinquent mortgage loans
including, for example, phone calls, letters and payment rescheduling plans in
cases where delinquency is deemed temporary (e.g., illness or unemployment).
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with X
variable rates are computed based on the related mortgage loan documents.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): (A) X
such funds are analyzed, in accordance with the obligor's mortgage loan
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on
such funds is paid, or credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of the related mortgage loans,
or such other number of days specified
in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are X
made on or before the related penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided that such support has
been received by the servicer at least 30
calendar days prior to these dates, or such other number of days specified in
the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on behalf X
of an obligor are paid from the servicer's funds and not charged to the obligor,
unless the late payment was due to the obligor's error or omission.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business days X
to the obligor's records maintained by the servicer, or such other number of
days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and X
recorded in accordance with the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
B-4
-----------------------------------------------------------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) through
(3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction
agreements.
-----------------------------------------------------------------------------------------------------------------------------------
B-5
[WACHOVIA MORTGAGE CORPORATION]
[NAME OF SUBSERVICER]
Date:__________________________
By: ________________________
Name:
Title:
B-6
EXHIBIT C
ADDITIONAL DISCLOSURE NOTIFICATION
Xxxxx Fargo Bank, N.A. as [Securities Administrator and Master Servicer]
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn: Corporate Trust Services - MSM 2006-5AR - SEC REPORT PROCESSING
RE: **Additional Form [ ] Disclosure**Required
Ladies and Gentlemen:
In accordance with Section [2.03(d)][2.03(e)][2.03(f)] of the Regulation
AB Compliance Addendum, dated as of November 22, 2005, as amended by the
Assignment, Assumption and Recognition Agreement dated as of March 1, 2006
among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Wachovia Mortgage
Corporation, Xxxxx Fargo Bank, National Association, as Master Servicer, and
LaSalle Bank National Association as Trustee. The Undersigned hereby notifies
you that certain events have come to our attention that [will][may] need to be
disclosed on Form [ ].
Description of Additional Form [ ] Disclosure:
List of Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any inquiries related to this notification should be directed to [ ],
phone number: [ ]; email address: [ ].
[NAME OF PARTY]
as [role]
By: __________________
Name:
Title:
C-1
