Exhibit 99.6
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (the "Assignment") is
dated as of July 1, 2007, by and among Xxxxxxx Xxxxx Mortgage Lending, Inc.,
having an address at 000 Xxxxx Xxxxxx, 4 World Financial Center, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Assignor"), Xxxxxxx Xxxxx Mortgage Investors, Inc.,
having an address at 000 Xxxxx Xxxxxx, 4 World Financial Center, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Assignee") and PHH Mortgage Corporation, formerly known
as Cendant Mortgage Corporation, having an address at 0000 Xxxxxxxxxx Xx, Xx.
Xxxxxx, Xxx Xxxxxx 00000 (the "Servicer").
WHEREAS, the Servicer and Xxxxxxx Xxxxx Credit Corporation ("MLCC"),
entered into that certain Portfolio Servicing Agreement, dated January 28, 2000
(as amended by that certain Amendment Agreement No. 1, dated as of January 2,
2001, the "Xxxxxxx Xxxxx Ops Guide") attached hereto as Exhibit F;
WHEREAS, the Assignor purchased the mortgage loans identified on Exhibit A
attached hereto (the "Mortgage Loans") from MLCC pursuant to that certain Master
Mortgage Loan Purchase Agreement, dated as of August 1, 2004, between the
Assignor and MLCC;
WHEREAS, MLCC assigned its rights with respect to the Mortgage Loans under
the Xxxxxxx Xxxxx Ops Guide to the Assignor pursuant to that certain Assignment,
Assumption and Recognition Agreement, dated as of September 1, 2004, among MLCC,
Assignor and Servicer (the "MLCC AAR") attached hereto as Exhibit B-2; and
WHEREAS, the Assignor wishes to assign to Assignee all of its right, title
and interest with respect to the Mortgage Loans and all of its right, title and
interest under the Xxxxxxx Xxxxx Ops Guide and the MLCC AAR, with respect to the
Mortgage Loans, and Assignee wishes to assume all of Assignor's right, title and
interest in and to such Mortgage Loans as provided in the Xxxxxxx Xxxxx Ops
Guide and the MLCC AAR.
WHEREAS, the Servicer shall service the Mortgage Loans in accordance with
the servicing provisions contained in the Mortgage Loan Flow Purchase, Sale and
Servicing Agreement, dated as of March 27, 2001 (the "Servicing Agreement")
attached hereto as Exhibit B-1, among Xxxxxxx Xxxxx Mortgage Capital, Inc.
("MLMC"), the Servicer and Xxxxxx'x Gate Residential Mortgage Trust;
WHEREAS, the Servicer and the Assignee hereto agree that Assignee will have
all the duties, rights, obligations and privileges of Purchaser under the
Servicing Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, and of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. Defined terms used in this Assignment and not otherwise defined herein shall
have the meaning set forth in the Servicing Agreement.
2. Assignor hereby grants, sells, transfers and assigns to Assignee all of the
right, title and interest of Assignor in the Mortgage Loans and, as they relate
to the Mortgage Loans, all of its right, title and interest in, to and under the
Xxxxxxx Xxxxx Ops Guide and the MLCC AAR. The Assignor specifically reserves and
does not assign to the Assignee hereunder any and all right, title and interest
in, to and under and all obligations of the Assignor with respect to any
mortgage loans subject to the Xxxxxxx Xxxxx Ops Guide and the MLCC AAR which are
not the Mortgage Loans set forth on Exhibit A attached hereto and are not the
subject of this Agreement.
3. The Assignor warrants and represents to the Assignee and to the Servicer as
of the date hereof:
(a) Attached hereto as Exhibit B-2 and Exhibit F are true and accurate
copies of the MLCC AAR and the Xxxxxxx Xxxxx Ops Guide, respectively, which
agreements are in full force and effect as of the date hereof and the provisions
of which have not been waived, amended or modified in any respect, nor has any
notice of termination been given thereunder, and that attached hereto as Exhibit
B-1 is a true and accurate copy of the Servicing Agreement;
(b) The Assignor was the lawful owner of the Mortgage Loans with full right
to transfer the Mortgage Loans and any and all of its interests, rights and
obligations under the Xxxxxxx Xxxxx Ops Guide and the MLCC AAR as they relate to
the Mortgage Loans, free and clear from any and all claims and encumbrances; and
upon the transfer of the Mortgage Loans to the Assignee as contemplated herein,
the Assignee shall have good title to each and every Mortgage Loan, as well as
any and all of the Assignor's interests, rights and obligations under the
Xxxxxxx Xxxxx Ops Guide and the MLCC AAR as they relate to the Mortgage Loans,
free and clear of any and all liens, claims and encumbrances;
(c) There are no offsets, counterclaims or other defenses available to the
Assignor with respect to the Mortgage Loans, the Xxxxxxx Xxxxx Ops Guide and the
MLCC AAR;
(d) The Assignor has no knowledge of, and has not received notice of, any
waivers under, or any modification of, any Mortgage Loan;
(e) The Assignor is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
power and authority to acquire, own and sell the Mortgage Loans;
(f) The Assignor has full corporate power and authority to execute, deliver
and perform its obligations under this Assignment, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this Assignment is in the ordinary course of the Assignor's business and will
not conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Assignor's charter or by-laws or any legal restriction, or any
material agreement or instrument to which Assignor is now a party or by which it
is bound,
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or result in the violation of any law, rule, regulation, order, judgment or
decree to which Assignor or its property is subject. The execution, delivery and
performance by the Assignor of this Assignment and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action on part of the Assignor. This Assignment has been duly executed
and delivered by the Assignor and, upon the due authorization, execution and
delivery by the Assignee and the Servicer, will constitute the valid and legally
binding obligation of the Assignor enforceable against the Assignor in
accordance with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding in
equity or at law; and
(g) No consent, approval, order or authorization of, or declaration, filing
or registration with, any governmental entity is required to be obtained or made
by the Assignor in connection with the execution, delivery or performance by the
Assignor of this Assignment, or the consummation by it of the transactions
contemplated hereby. Neither the Assignor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans
or any interest in the Mortgage Loans, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Mortgage Loans, or any interest in
the Mortgage Loans or otherwise approached or negotiated with respect to the
Mortgage Loans, or any interest in the Mortgage Loans with any Person in any
manner, or made any general solicitation by means of general advertising or in
any other manner, or taken any other action which would constitute a
distribution of the Mortgage Loans under the Securities Act of 1933, as amended
(the "1933 Act") or which would render the disposition of the Mortgage Loans a
violation of Section 5 of the 1933 Act or require registration pursuant thereto.
4. The Assignee represents, warrants and covenants with the Assignor and the
Servicer that:
(a) The Assignee is a corporation, duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation, and has
all requisite power and authority to acquire, own and purchase the Mortgage
Loans;
(b) The Assignee has full power and authority to execute, deliver and
perform under this Assignment, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by this Assignment is
in the ordinary course of the Assignee's business and will not conflict with, or
result in a breach of, any of the terms, conditions or provisions of the
Assignee's charter or bylaws, or any legal restriction, or any material
agreement or instrument to which the Assignee is now a party or by which it is
bound, or result in the violation of any law, rule, regulation, order, judgment
or decree to which the Assignee or its property is subject. The execution,
delivery and performance by the Assignee of this Assignment and the consummation
by it of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action of the Assignee. This Assignment has been duly
executed and delivered by the Assignee and, upon the due authorization,
execution and delivery by the Assignor and the Servicer, will constitute the
valid and legally binding obligation of the
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Assignee enforceable against the Assignee in accordance with its terms, except
as enforceability thereof may be limited by bankruptcy, insolvency, or
reorganization or other similar laws now or hereinafter in effect relating to
creditor's rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or in law;
(c) No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is required to
be obtained or made by the Assignee in connection with the execution, delivery
or performance by the Assignee of this Assignment, or the consummation by it of
the transactions contemplated hereby;
(d) There is no action, suit, proceeding, investigation or litigation
pending or, to the Assignee's knowledge, threatened, which either in any
instance or in the aggregate, if determined adversely to the Assignee, would
adversely affect the Assignee's execution or delivery of, or the enforceability
of, this Assignment, or the Assignee's ability to perform its obligations under
this Assignment; and
(e) The Assignee assumes for the benefit of the Trust, all of the rights of
Xxxxxxx Xxxxx Credit Corporation under the Xxxxxxx Xxxxx Ops Guide and the MLCC
AAR with respect to the Mortgage Loans listed on Exhibit A, including the right
to enforce the obligations of the Servicer under the Servicing Agreement as they
relate to the servicing of the Mortgage Loans.
5. The Servicer warrants and represents to, and covenants with, Assignor and
Assignee as of the date hereof:
(a) Attached hereto as Exhibit B-1 and Exhibit F are true and accurate
copies of the Servicing Agreement and the Xxxxxxx Xxxxx Ops Guide which
agreements are in full force and effect as of the date hereof and the provisions
of which have not been waived, amended or modified in any respect other than by
the MLCC AAR, nor has any notice of termination been given thereunder;
(b) The Servicer is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and the Servicer has
all requisite power and authority to service the Mortgage Loans and the Servicer
has all requisite power and authority to perform its obligations under the
Xxxxxxx Xxxxx Ops Guide and the Servicing Agreement;
(c) The Servicer has full corporate power and authority to execute, deliver
and perform its obligations under this Assignment, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this Assignment is in the ordinary course of the Servicer's business and will
not conflict with, or result in a breach of, any of the terms, conditions or
provisions of its charter or by-laws or any legal restriction, or any material
agreement or instrument to which it is now a party or by which it is bound, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Servicer or its property is subject. The execution, delivery and
performance by the Servicer of this Assignment and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action on the part of the Servicer. This Assignment has been duly
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executed and delivered by the Servicer, and, upon the due authorization,
execution and delivery by Assignor and Assignee, will constitute the valid and
legally binding obligation of the Servicer, enforceable against the Servicer in
accordance with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding in
equity or at law;
(d) No consent, approval, order or authorization of, or declaration, filing
or registration with, any governmental entity is required to be obtained or made
by Assignee in connection with the execution, delivery or performance by the
Servicer of this Assignment, or the consummation by it of the transactions
contemplated hereby; and
(e) The Servicer shall establish a Collection Account and an Escrow
Account, as described in the Servicing Agreement, in favor of Assignee with
respect to the Mortgage Loans and which accounts are separate from the
Collection Account and Escrow Account previously established under the Xxxxxxx
Xxxxx Ops Guide in favor of MLCC.
6. The Servicer hereby acknowledges that Xxxxx Fargo Bank, N.A. (the "Master
Servicer" and "Securities Administrator") has been appointed as the master
servicer of the Mortgage Loans pursuant to the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of July 1, 2007, among the
Assignee, HSBC Bank USA, National Association and Xxxxx Fargo Bank, N.A. as the
master servicer and securities administrator. The Servicer shall deliver all
reports required to be delivered under the Xxxxxxx Xxxxx Ops Guide and the
Servicing Agreement to:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series 2007-3
Recognition of Assignee
7. From and after the date hereof the Servicer shall recognize the Assignee as
owner of the Mortgage Loans, and acknowledges that the Mortgage Loans will be
part of a REMIC. The Servicer will service the Mortgage Loans in accordance with
the servicing provisions contained in the Servicing Agreement, but in no event
in a manner that would (i) cause the REMIC to fail to qualify as a REMIC or (ii)
result in the imposition of a tax upon the REMIC (including but not limited to
the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code
and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code). It is the intention of the Assignor, the Servicer and the Assignee that
this Assignment shall be binding upon and for the benefit of the respective
successors and assigns of the parties hereto. Neither the Servicer nor the
Assignor shall amend or agree to amend, modify, waive, or otherwise alter any of
the terms or provisions of the Xxxxxxx Xxxxx Ops Guide or the Servicing
Agreement, which amendment, modification, waiver or other alteration would in
any way affect the Mortgage Loans without the prior written consent of the
Assignee.
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In addition, the Servicer hereby acknowledges that from and after the date
hereof, the Mortgage Loans will be subject to the terms and conditions of the
Pooling and Servicing Agreement pursuant to which the Master Servicer has the
right to monitor the performance by the Servicer of its servicing obligations
under the Servicing Agreement. Such right will include, without limitation, the
right to terminate the Servicer under the Servicing Agreement upon the
occurrence of an event of default thereunder, the right to receive all
remittances required to be made by the Servicer under the Servicing Agreement,
the right to receive all monthly reports and other data required to be delivered
by the Servicer under the Servicing 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 the
Servicer. In connection therewith, the Servicer hereby agrees to make all
remittances required under the Servicing Agreement with respect to the Mortgage
Loans to the Master Servicer for the benefit of the Assignee in accordance with
the following wire transfer instructions:
Xxxxx Fargo Bank, N.A.
ABA #000-000-000
Account Name: Corporate Trust Clearing
Account # 0000000000
For Further Credit to: MLMBS 2007-3, Account # 00000000
Applicable statements should be mailed to Xxxxx Fargo Bank, National
Association, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, 00000, Attention:
Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series 2007-3.
A copy of all assessments, attestations, reports and certifications
required to be delivered by the Servicer under this Assignment and the Servicing
Agreement shall be delivered to the Master Servicer by the date(s) specified
herein or therein, and where such documents are required to be addressed to any
party, such addressees shall include the Master Servicer and the Master Servicer
shall be entitled to rely on such documents.
It is the intention of the Assignor, the Servicer and the Assignee that
this Assignment will be a separate and distinct servicing agreement between the
Assignee and the Servicer, to the extent of the Mortgage Loans, and shall be
binding upon and for the benefit of the respective successors and assigns of the
parties hereto. Neither the Servicer nor the Assignor shall amend or agree to
amend, modify, waive, or otherwise alter any of the terms or provisions of the
Xxxxxxx Xxxxx Ops Guide or the Servicing Agreement which amendment,
modification, waiver or other alteration would in any way affect the Mortgage
Loans without the prior written consent of the Assignee.
Modification of the Servicing Agreement
8. The Servicer and the Assignor hereby amend the Servicing Agreement as
follows:
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(a) The following definitions are added to Section 1.01:
Annual Independent Public Accountants' Servicing Report: A report of a
firm of independent public accountants which is a member of the
American Institute of Certified Public Accountants to the effect that
such firm has examined certain documents and records relating to the
servicing of the Mortgage Loans and that such firm is of the opinion
that the provisions of this Agreement have been complied with, and
that, on the basis of such examination conducted substantially in
compliance with the Uniform Single Attestation Program for Mortgage
Bankers, nothing has come to the attention of such firm which would
indicate that such servicing has not been conducted in compliance
therewith, except (i) such exceptions such firm shall believe to be
immaterial, and (ii) such other exceptions as shall be set forth in
such report. No Annual Independent Public Accountants' Servicing
Report shall contain any provision restricting the use of such report
by the Company, including any prohibition on the inclusion of any such
report in any filing with the Commission.
Commission: The United States Securities and Exchange Commission.
Closing Date: July 31, 2007.
Depositor: Xxxxxxx Xxxxx Mortgage Investors, Inc.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Fitch: Fitch, Inc., or its successors in interest.
Master Servicer: Xxxxx Fargo Bank, N.A. or its successors in interest.
Moody's: Xxxxx'x Investors Service, Inc., or its successors in
interest.
Prepayment Interest Shortfall: With respect to any Remittance Date,
for each Mortgage Loan that was the subject of a Principal Prepayment
in full during the related Monthly Period, an amount equal to the
excess of one month's interest at the applicable Note Rate on the
amount of such Principal Prepayment over the amount of interest
(adjusted to the Note Rate) actually paid by the related Mortgagor
with respect to such Monthly Period.
Purchaser: Xxxxxxx Xxxxx Mortgage Lending, Inc., or its successors in
interest.
Regulation AB: Subpart 229.1100 -- Asset Backed Securities (Regulation
AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed.
Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of
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the Commission, or as may be provided by the Commission or its staff
from time to time.
Relevant Servicing Criteria: as defined in Section 7A.05.
REMIC Provisions: The provisions of the federal income tax law
relating to REMICs, which appear at Sections 860A through 860G of the
Code, and related provisions and regulations promulgated thereunder,
as the foregoing may be in effect from time to time.
Responsible Officer: means any vice president, any managing director,
any director, any associate, any assistant vice president, any
assistant secretary, any assistant treasurer or any other officer or
employee of the Servicer customarily performing functions similar to
those performed by any of the above designated officers and also to
whom, with respect to a particular matter, such matter is referred
because of such officer's or employee's knowledge of and familiarity
with the particular subject and in each case who shall have direct
responsibility for the administration of the Agreement.
S&P: Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx
Companies, or its successors in interest.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Xxxxx Fargo Bank, N.A.
Servicer Information: As provided in Section 7A.07(a)(i)(A).
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d)
of Regulation AB, as such may be amended from time to time.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgage-backed securities market)
of Mortgage Loans but performs one or more discrete material functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage
Loans under the direction or authority of the Servicer or a
Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of the
Servicer or any Subservicer and is responsible for the performance
(whether directly or through Subservicers or Subcontractors) of a
substantial portion of the material servicing functions required to be
performed by the Servicer under the Servicing Agreement or this
Assignment that are identified in Item 1122(d) of Regulation AB;
provided, however, that the term "Subservicer" shall not include any
master servicer, or any special servicer engaged at the request of the
Depositor, Assignor
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or investor, nor any "back-up servicer" or trustee performing
servicing functions in connection with this Assignment or under the
Purchase Sale and Servicing Agreement.
Trustee: HSBC Bank USA, National Association.
(b) The definition of Business Day is deleted in its entirety and replaced
with the following:
"Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day
on which the Federal Reserve is closed, or (iii) a day on which banking
institutions in the jurisdiction in which the Master Servicer is authorized or
obligated by law or executive order to be closed."
(c) The definition of Eligible Account is deleted in its entirety and
replaced with the following:
"Eligible Account: Any of (i) a segregated account maintained with a
federal or state chartered depository institution (A) the short-term obligations
of which are rated A-1 or better by S&P and P-1 by Moody's at the time of any
deposit therein or (B) the long term unsecured debt obligations of which are
rated at least "AA-" by S&P and "A+" by Fitch (if so rated) if the deposits are
to be held in the account more than 30 days; following a downgrade, withdrawal,
or suspension of such institution's rating, each account should promptly (and in
any case within not more than 60 calendar days) be moved to a qualifying
institution or to one or more segregated trust accounts in the trust department
of such institution, if permitted, (ii) a segregated trust account or accounts
maintained with a federal or state chartered depository institution or trust
company with trust powers acting in its fiduciary capacity or (iii) a segregated
account or accounts of a depository institution acceptable to the Rating
Agencies (as evidenced by a letter from each Rating Agency that use of any such
account as the Collection Account will not have an adverse effect on the
then-current ratings assigned to the Classes of the Certificates then rated by
the Rating Agencies). Eligible Accounts may bear interest."
(d) The following is added as clause (10) to Section 5.04 of the Servicing
Agreement:
"(10) with respect to each Principal Prepayment in full, any Prepayment
Interest Shortfall, to the extent of the Servicer's aggregate Servicing Fee
received with respect to the related Monthly Period."
(e) The following paragraphs are added after the second paragraph of
Section 5.13 of the Servicing Agreement:
"Notwithstanding anything in this Agreement to the contrary, the Servicer
(a) shall not permit any modification with respect to any Mortgage Loan that
would change the Mortgage Interest Rate and (b) shall not (unless with respect
to clause (i) only, the Mortgagor is in default with respect to the Mortgage
Loan or such default is, in the judgment of the Servicer, reasonably
foreseeable) make or permit any modification, waiver or amendment of any term of
any
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Mortgage Loan that would (i) effect an exchange or reissuance of such Mortgage
Loan under Section 1001 of the Code (or Treasury regulations promulgated
thereunder) or (ii) cause the Trust Fund to fail to qualify as a REMIC under the
Code or the imposition of any tax on "prohibited transactions" or
"contributions" after the startup date under the REMIC Provisions.
Prior to taking any action with respect to the Mortgage Loans which is not
contemplated under the terms of this Agreement, the Servicer will obtain an
Opinion of Counsel acceptable to the Trustee to the effect that such action will
not result in the imposition of a tax upon the REMIC (including but not limited
to the tax on prohibited transactions as defined in Section 860F(a)(2) of the
Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) (either such event, an "Adverse REMIC Event"), and the Servicer shall not
take any such action or cause the Trust Fund to take any such action as to which
it has been advised that an Adverse REMIC Event will occur.
The Servicer shall not permit the creation of any "interests" (within the
meaning of Section 860G of the Code) in the REMIC. The Servicer shall not enter
into any arrangement by which the REMIC will receive a fee or other compensation
for services nor permit the REMIC to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
Any REO Property shall be disposed of by the Servicer before the close of
the third taxable year following the taxable year in which the Mortgage Loan
became an REO Property, unless the Servicer is otherwise directed by the
Assignee."
(f) The following sentence is added to the end of Section 6.01(1) of the
Servicing Agreement:
"Notwithstanding anything herein to the contrary, on each Remittance Date,
the Servicer shall remit Payoffs, with interest as set forth herein, collected
in the month prior to the Remittance Date."
(g) The following sentence is added to the end of the first paragraph of
Section 6.02 of the Servicing Agreement:
"In addition, no later than the fifth (5th) calendar day of each month (or
if such fifth day is not a Business Day, the Business Day immediately following
such fifth day), the Servicer shall forward to the Master Servicer a monthly
remittance advice in the form set forth in Exhibit C, a realized loss report in
the form set forth in Exhibit D and a delinquency report in the form set forth
in Exhibit E to the Assignment, Assumption and Recognition Agreement, dated as
of July 1, 2007, among Xxxxxxx Xxxxx Mortgage Lending, Inc., Xxxxxxx Xxxxx
Mortgage Investors, Inc. and the Servicer, each in a mutually agreeable
electronic format, or in such other format or, solely with respect to Exhibit C
and Exhibit E, such other content, as mutually agreed to by the Servicer and the
Master Servicer."
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(h) All references in Section 7.02 of the Servicing Agreement to
"Purchaser" shall be deleted and replaced with "Purchaser or its designee."
(i) Section 7.04 shall be deleted and replaced and marked "[Reserved]."
(j) Section 7.05 shall be deleted, and marked "[Reserved]."
(k) The following phrase is added to Section 11.01(1) of the Servicing
Agreement immediately before the word "hereof": "or in Section 11.01(4)."
(l) The following Subsection (4) is added to Section 11.01 of the Servicing
Agreement:
"(4) Notwithstanding anything to the contrary in this Agreement, the
Purchaser may elect to terminate this Agreement without cause and without
payment to the Servicer of any penalty upon notice to Servicer.
The Servicer acknowledges that in the event Xxxxx Fargo Bank, N.A. is
terminated as the Master Servicer under the Pooling and Servicing Agreement,
dated as of July 1, 2007, among the Depositor, the Master Servicer and the
Trustee, the Securities Administrator or successor master servicer thereunder
has the option to terminate this Agreement and the rights of the Servicer to
service the Mortgage Loans, without cause and without penalty or payment of a
termination fee to the Servicer."
(m) The following shall be added as Section 12.12 of the Servicing
Agreement:
"Third Party Beneficiary. For purposes of this Agreement, 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) The following shall be inserted into the agreement as Article 7A,
entitled "Compliance with Regulation AB":
Section 7A.01 Compliance with Regulation AB.
Each of the parties hereto acknowledges and agrees that the purpose of this
Article 7A is to facilitate compliance by the Master Servicer and the Depositor
with the provisions of Regulation AB, as such may be amended or clarified from
time to time. Therefore, each of the parties agrees that the parties'
obligations hereunder will be supplemented and modified as necessary to be
consistent with any such amendments, interpretive advice or guidance, convention
or consensus among active participants in the asset-backed securities markets,
advice of counsel, or otherwise in respect of the requirements of Regulation AB
and the parties shall comply with requests made by the Master Servicer or
Depositor for delivery of additional or different information as the Master
Servicer or Depositor may determine in good faith is necessary to comply with
the provisions of Regulation AB. Any such supplementation or
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modification may result in a change in the reports filed by the Securities
Administrator on behalf of the Issuing Entity under the Exchange Act.
Section 7A.02 [Reserved].
Section 7A.03 Notices to be Provided by the Servicer.
(a) For the purpose of satisfying the reporting obligation under the Exchange
Act with respect to any class of asset-backed securities, the Servicer shall (or
shall cause each Subservicer to) (i) provide prompt notice to any Master
Servicer and any Depositor in writing of (A) any material litigation or
governmental proceedings involving the Servicer or any Subservicer, (B) any
affiliations or relationships that develop following the Closing Date between
the Servicer or any Subservicer and any of the sponsor, the depositor, the
issuing entity, any servicer, any trustee, any originator, any significant
obligor, any enhancement or support provider and any other material transaction
party (and any other parties identified in writing by the requesting party), (C)
any Event of Default under the terms of this Agreement or any applicable
agreement, (D) any merger, consolidation or sale of substantially all of the
assets of the Servicer, and (E) the Servicer's entry into an agreement with a
Subservicer to perform or assist in the performance of any of the Servicer's
obligations under this Agreement or any Reconstitution Agreement and (ii)
provide to the Depositor a description of such proceedings, affiliations or
relationships.
(b) As a condition to the succession to the Servicer or any Subservicer as
servicer or subservicer under this Agreement or any Reconstitution Agreement by
any Person (i) into which the Servicer or such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Servicer or
any Subservicer, the Servicer shall provide to any Master Servicer, and the
Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the 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.
(c) In addition to such information as the Servicer, 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, the Servicer or any Subservicer hired by the Servicer, as applicable,
shall, to the extent the Servicer or such Subservicer has knowledge, provide to
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);
12
(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).
(d) The Servicer 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 Servicer or any Subservicer or the Servicer or such
Subservicer's performance hereunder.
Section 7A.04 Servicer Compliance Statement.
Not later than March 1st for each calendar year (other than the calendar
year during which the Closing Date occurs), the Servicer shall deliver (or
otherwise make available) and the Servicer shall cause any Subservicer or
Subcontractor engaged by it to deliver to the Master Servicer, the Securities
Administrator and the Depositor an officer's certificate in the form attached
hereto as Exhibit Z-1 stating, as to each signatory thereof, that (i) a review
of the activities of such signatory during the preceding calendar year, or
portion thereof, and of the performance of such signatory under this Agreement
or such other applicable agreement in the case of a Subservicer or Subcontractor
has been made under such officer's supervision, and (ii) to the best of such
officer's knowledge, based on such review, such signatory has fulfilled all its
obligations under this Agreement or such other applicable agreement in all
material respects throughout such year or a portion thereof, or, if there has
been a failure to fulfill any such obligation in any material respect,
specifying each such failure known to such officer and the nature and status
thereof.
Section 7A.05 Report on Assessment of Compliance and Attestation.
(a) Not later than March 1st for each calendar year (other than the calendar
year during which the Closing Date occurs) the Servicer at its own expense,
shall furnish, and shall cause any Subservicer or Subcontractor engaged by it to
furnish (unless in the case of a Subcontractor, the Servicer has notified the
Depositor and the Master Servicer in writing that such compliance statement is
not required for the Subcontractor) to the Master Servicer, the Securities
Administrator and the Depositor an officer's assessment of its compliance with
the Servicing Criteria applicable to each such party set forth in Exhibit Y (the
"Relevant Servicing Criteria") during the preceding calendar year as required by
Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB (the
"Assessment of Compliance"), which assessment (a form of which is attached
hereto as Exhibit X) shall contain (A) a statement by such party of its
13
responsibility for assessing compliance with the Relevant Servicing Criteria,
(B) a statement that such party used the Relevant Servicing Criteria to assess
compliance with the Relevant Servicing Criteria, (C) such party's assessment of
compliance with the Relevant Servicing Criteria as of and for the fiscal year
covered by the most recent Form 10-K required to be filed in connection with the
Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series 2007-3, including, if
there has been any material instance of noncompliance with the Relevant
Servicing Criteria, a discussion of each such failure and the nature and status
thereof, which assessment shall be based on the activities it performs with
respect to asset-backed securities transactions taken as a whole involving such
party that are backed by the same asset type as the Mortgage Loans, and (D) a
statement that a registered public accounting firm has issued an attestation
report on such party's assessment of compliance with the Relevant Servicing
Criteria as of and for such period.
(b) Not later than March 1st for each calendar year (other than the calendar
year during which the Closing Date occurs) the Servicer at its own expense,
shall cause, and shall cause any Subservicer or Subcontractor engaged by it to
cause (unless in the case of a Subcontractor, the Servicer has notified the
Depositor and the Master Servicer in writing that such report is not required
for the Subcontractor) a nationally or regionally recognized firm of independent
registered public accountants (who may also render other services to the
Servicer, the Master Servicer or any affiliate thereof) which is a member of the
American Institute of Certified Public Accountants to furnish a report (the
"Accountant's Attestation") to the Master Servicer, the Securities Administrator
and the Depositor to the effect that (i) it has obtained a representation
regarding certain matters from the management of such party, which includes an
assertion that such party has complied with the Relevant Servicing Criteria, and
(ii) on the basis of an examination conducted by such firm in accordance with
standards for attestation engagements issued or adopted by the Public Servicer
Accounting Oversight Board, it is expressing an opinion as to whether such
party's compliance with the Relevant Servicing Criteria was fairly stated in all
material respects, or it cannot express an overall opinion regarding such
party's assessment of compliance with the Relevant Servicing Criteria. In the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such an
opinion. Such report must be available for general use and not contain
restricted use language. Such Accountant's 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.
In the event the Servicer or any Subservicer or Subcontractor engaged by
the Servicer is terminated, assigns its rights and duties under, or resigns
pursuant to the terms of, this Assignment, the Servicing Agreement or any
sub-servicing agreement, as the case may be, such party shall cause a registered
public accounting firm to provide an attestation pursuant to this Section
7A.05(b), or such other applicable agreement, notwithstanding any such
termination, assignment or resignation.
On or before March 1 of each calendar year, commencing in 2008, the
Servicer shall deliver, and cause each Subservicer and Subcontractor to provide,
to the Purchaser, any Depositor, any Master Servicer and any other Person that
will be responsible for signing the certification (a "Sarbanes Certification")
required by Rules 13a-14(d) and 15d-14(d) under the
14
Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on
behalf of an asset-backed issuer with respect to a securitization transaction a
certification, signed by the appropriate officer of the Servicer, in the form
attached hereto as Exhibit Z.
The Servicer acknowledges that the parties identified in the paragraph
immediately preceding this may rely on the certification provided by the
Servicer pursuant to such clause in signing a Sarbanes Certification and filing
such with the Commission.
(c) Notwithstanding the foregoing provisions of Section 7A.05, (i) in the event
that during any calendar year (or applicable portion thereof) the Company
services 5% or less of the mortgage loans in a Securitization Transaction, as
calculated by the Master Servicer for such Securitization Transaction, or (ii)
in any calendar year in which an annual report on Form 10-K is not required to
be filed with respect to an issuing entity or Securitization Transaction, then,
in each such event, the Company may, in lieu of providing an assessment of
compliance and attestation thereon in accordance with Item 1122 of Regulation
AB, provide (and cause each Subservicer and Subcontractor described in the third
paragraph of clause (b) above to provide) to the Depositor and the Master
Servicer for such Securitization Transaction, by not later than March 1 of such
calendar year, an Annual Independent Public Accountants' Servicing Report. If
the Company provides an Annual Independent Public Accountants' Servicing Report
pursuant to this subsection (c), then the certification required to be delivered
by the Company (and its Subservicers and Subcontractors) pursuant to the third
paragraph of clause (b) above shall be in the form of Exhibit Z-2 attached
hereto instead of Exhibit Z.
Section 7A.06 Use of Subservicers and Subcontractors.
The Servicer shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Servicer as servicer under
the Servicing Agreement or this Assignment unless the Servicer complies with the
provisions of paragraph (a) of this Section. The Servicer shall not hire or
otherwise utilize the services of any Subcontractor, and shall not permit any
Subservicer to hire or otherwise utilize the services of any Subcontractor, to
fulfill any of the obligations of the Servicer as servicer under the Servicing
Agreement or this Assignment unless the Servicer complies with the provisions of
paragraph (b) of this Section.
(a) It shall not be necessary for the Servicer to seek the consent of any Master
Servicer or the Depositor to the utilization of any Subservicer. The Servicer
shall cause any Subservicer used by the Servicer (or by any Subservicer) for the
benefit of the Purchaser and the Depositor to comply with the provisions of this
Section and with Sections 7A.03, 7A.04, 7A.05 and 7A.07 of the Servicing
Agreement to the same extent as if such Subservicer were the Servicer and to
provide the information required with respect to such Subservicer under Section
7A.03 of this Agreement. The Servicer shall be responsible for obtaining from
each Subservicer and delivering to the Depositor any servicer compliance
statement required to be delivered by such Subservicer under Section 7A.04, any
assessment of compliance and attestation required to be delivered by such
Subservicer under Section 7A.05 and any certification required to be delivered
to the
15
Person that will be responsible for signing the Sarbanes Certification under
Section 7A.05 as and when required to be delivered.
(b) It shall not be necessary for the Servicer to seek the consent of any Master
Servicer or the Depositor to the utilization of any Subcontractor. The Servicer
shall promptly upon request provide to any Master Servicer and the Depositor (or
any designee of the Depositor, such as an administrator) a written description
(in form and substance satisfactory to the Depositor and such Master Servicer)
of the role and function of each Subcontractor utilized by the Servicer or any
Subservicer, specifying (i) the identity of each such Subcontractor, (ii) which
(if any) of such Subcontractors are "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB, and (iii) which elements of
the Servicing Criteria will be addressed in assessments of compliance provided
by each Subcontractor identified pursuant to clause (ii) of this paragraph.
As a condition to the utilization of any Subcontractor determined to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Depositor to comply with
the provisions of Sections 7A.05 and 7A.07 of this Agreement to the same extent
as if such Subcontractor were the Servicer. The Servicer shall be responsible
for obtaining from each Subcontractor and delivering to the Depositor any
assessment of compliance and attestation and the other certifications required
to be delivered by such Subservicer and such Subcontractor under Section 7A.05,
in each case as and when required to be delivered.
Section 7A.07 Indemnification; Remedies.
(a) The Servicer shall indemnify and hold harmless the Depositor, the Trustee,
the Securities Administrator and the Master Servicer and each of its officers,
directors and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon a breach of the
obligations of the Servicer under Sections 7A.03, 7A.04 or 7A.05 (including
particularly any failure by the Servicer and Subservicer or any Subcontractor to
deliver any information, report, certification, accountants letters or other
material when and as required therein, including any failure by the Servicer to
identify pursuant to Section 7A.06(b) any Subcontractor "participating in the
servicing function" within the meaning of item 1122 of Regulation AB). or the
Servicer's negligence, bad faith or willful misconduct in connection therewith.
In addition, the Servicer shall indemnify and hold harmless the Depositor and
each of its officers, directors and affiliates and the Master Servicer from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Annual Statement of Compliance,
the Assessment of Compliance, the Accountant's Attestation, Sarbanes
Certification, Exchange Act report disclosure or other information provided by
or on behalf of the Servicer or on behalf of any subservicer or subcontractor of
the Servicer pursuant to Sections 7A.03, 7A.04 or 7A.05 (the "Servicer
Information"), or (ii) the omission or alleged omission to state therein a
material fact required to
16
be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided, by way of
clarification, that clause (ii) of this paragraph shall be construed solely by
reference to the Servicer Information and not to any other information
communicated in connection with the Certificates, without regard to whether the
Servicer Information or any portion thereof is presented together with or
separately from such other information.
If the indemnification provided for herein is unavailable or insufficient
to hold harmless the Depositor, the Trustee, the Securities Administrator or the
Master Servicer, as applicable, then the defaulting party, in connection with
any conduct for which it is providing indemnification for under this
Section7A.07, agrees that it shall contribute to the amount paid or payable by
the other parties as a result of the losses, claims, damages or liabilities of
the other party in such proportion as is appropriate to reflect the relative
fault and the relative benefit of the respective parties.
The indemnification provisions set forth in this Section 7A.07 shall
survive the termination of the Servicing Agreement or the termination of any
party to this Agreement.
The indemnity provided in this Section 7A.07 shall remain in full force and
effect regardless of any investigation made by the Master Servicer, the Trustee,
the Securities Administrator, Xxxxxxx Xxxxx Mortgage Backed Securities Trust,
Series 2007-3 or the Depositor or its representatives. The provisions of this
Section 7A.07 shall survive the termination of this Agreement.
In the case of any failure of performance described in the first sentence
of this Section, the Servicer shall promptly reimburse the Depositor and the
Master Servicer 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 Servicer, any Subservicer or any
Subcontractor.
(b) (i) Any failure by the Servicer, any Subservicer or any Subcontractor to
deliver any information, report, certification, accountants' letter or other
material when and as required under this Article 7A 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 Servicer under
this Agreement, and shall entitle the Depositor in its sole discretion to
terminate the rights and obligations of the Servicer as servicer under this
Agreement without payment (notwithstanding anything in this Agreement to the
contrary) of any compensation to the Servicer (and if the Servicer is servicing
any of the Mortgage Loans, appoint a successor servicer reasonably acceptable to
the Master Servicer); provided that to the extent that any provision of this
Agreement expressly provides for the survival of certain rights or obligations
following termination of the Servicer as servicer, such provision shall be given
effect.
(ii) Any failure by the Servicer, any Subservicer or any Subcontractor to
deliver any information, report, certification or accountants' letter when and
as required under Section 7A.04 or 7A.05, including any failure by the Servicer
to identify pursuant to Section 7A.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
17
information, report, certification or accountants' letter was required to be
delivered shall constitute an Event of Default with respect to the Servicer
under this Agreement, and shall entitle the Master Servicer or the Depositor, as
applicable, in its sole discretion to terminate the rights and obligations of
the Servicer as servicer under this Agreement without payment (notwithstanding
anything in this Agreement to the contrary) of any compensation to the Servicer;
provided that to the extent that any provision of this Agreement expressly
provides for the survival of certain rights or obligations following termination
of the Servicer as servicer, such provision shall be given effect.
(iii) The Servicer shall promptly reimburse the Master Servicer and the
Depositor, as applicable, for all reasonable expenses incurred by the Master
Servicer or the Depositor, as such are incurred, in connection with the
termination of the Servicer 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 Master Servicer or the Depositor may have under
other provisions of this Agreement or otherwise, whether in equity or at law,
such as an action for damages, specific performance or injunctive relief.
Section 7A.08 Responsible Officers.
Any reference herein to the Servicer's knowledge, discovery or awareness,
or notice or identification to the Servicer, or a request to the Servicer, shall
be in each case be deemed to refer solely to the knowledge or awareness of, or
notice or identification to, or request of, a Responsible Officer of the
Servicer.
Section 7A.09. Third Party Beneficiary.
For purposes of this Article 7A and any related provisions thereto, the
Master Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits hereof as if it were a direct party to
this Agreement.
Section 7A.10. Exhibits.
(a) The Agreement is hereby amended by inserting Exhibit X attached hereto at
the end thereto.
(b) The Agreement is hereby amended by inserting Exhibit Y attached hereto at
the end thereto.
(c) The Agreement is hereby amended by inserting Exhibit Z attached hereto at
the end thereto.
(d) The Agreement is hereby amended by inserting Exhibit Z-1 attached hereto at
the end thereto.
(e) The Agreement is hereby amended by inserting Exhibit Z-2 attached hereto at
the end thereto.
18
9. Indemnification by Master Servicer.
The Master Servicer shall indemnify and hold harmless the Servicer and its
affiliates, and in each case, its officers, directors and agents from and
against any losses, damages, penalties, fines, forfeitures, reasonable legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon a breach by the Master Servicer or any of its officers, directors,
agents or affiliates of its obligations in connection with the preparation,
filing and certification of any Form 10-K under Section 3.18 of the Pooling and
Servicing Agreement or the negligence, bad faith or willful misconduct of the
Master Servicer in connection therewith.
10. Notice Addresses.
If to the Assignor:
Xxxxxxx Xxxxx Mortgage Lending, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MLMBS 2007-3
If to the Assignee:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MLMBS 2007-3
If to the Servicer:
PHH Mortgage Corporation
0000 Xxxxxxxxxx Xxxx
Mail Stop SVPM
Xx. Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxx Xxxxxx
11. This Assignment shall be construed in accordance with the substantive laws
of the State of New York (without regard to conflict of laws principles) and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws, except to the extent preempted by federal law.
12. From and after the date hereof, the Servicer, as servicer shall recognize
the Assignee as the owner of the Mortgage Loans, and the Servicer will service
the Mortgage Loans in accordance with the servicing provisions contained in the
Servicing Agreement for the benefit of
19
the Assignee, and shall look solely to the Assignee for performance of the
obligations of Purchaser under the Servicing Agreement with respect to the
Mortgage Loans. From and after the date hereof, the Assignee shall recognize the
Servicer as the servicer of the Mortgage Loans, and shall look solely to the
Servicer for performance of the obligations of the Servicer under the Servicing
Agreement with respect to the Mortgage Loans.
13. This Assignment shall inure to the benefit of the successors and assigns of
the parties hereto. Any entity into which the Servicer, the Assignor or the
Assignee may be merged or consolidated shall, without the requirement for any
further writing, be deemed the Servicer, the Assignor or the Assignee,
respectively, hereunder.
14. No term or provision of this Assignment may be waived or modified unless
such waiver or modification is in writing and signed by the parties hereto,
including the aknowledgment parties.
15. This Assignment shall survive the conveyance of the Mortgage Loans and the
assignment of the Servicing Agreement to the extent of the Mortgage Loans by the
Assignor to the Assignee and the termination of the Servicing Agreement.
16. This Assignment may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute and be one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
20
IN WITNESS WHEREOF, the parties have caused this Assignment, Assumption and
Recognition Agreement to be executed by their duly authorized officers as of the
date first above written.
XXXXXXX XXXXX MORTGAGE
LENDING, INC.
THE ASSIGNOR
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
XXXXXXX XXXXX MORTGAGE
INVESTORS, INC.,
THE ASSIGNEE
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
PHH MORTGAGE CORPORATION,
THE SERVICER
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
ACKNOWLEDGED AND AGREED
XXXXX FARGO BANK, N.A.
THE MASTER SERVICER
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT A
Mortgage Loan Schedule
[Intentionally Omitted]
X-0-0
XXXXXXX X-0
Mortgage Loan Flow Purchase, Sale and Servicing Agreement, dated as of
March 27, 2001.
See Exhibit 99.7 to this Form 8k
B-1-1
EXHIBIT B-2
Assignment and Assumption Agreement, dated as of September 1, 2004, among MLCC,
Assignor and the Servicer
[Intentionally Omitted]
B-2-1
EXHIBIT C
STANDARD LOAN LEVEL FILE LAYOUT - MASTER SERVICING
EXHIBIT 1: Layout
MAX
COLUMN NAME DESCRIPTION DECIMAL FORMAT COMMENT SIZE
----------- ----------------------------------------------- ------- ---------------- ----
EACH FILE REQUIRES THE FOLLOWING FIELDS:
SER_INVESTOR_NBR A value assigned by the Servicer to Text up to 20 20
define a group of loans. digits
LOAN_NBR A unique identifier assigned to each loan Text up to 10 10
by the investor. digits
SERVICER_LOAN_NBR A unique number assigned to a loan by the Text up to 10 10
Servicer. This may be different than the digits
LOAN_NBR.
SCHED_PAY_AMT Scheduled monthly principal and scheduled 2 No commas(,) or 11
interest payment that a borrower is dollar signs ($)
expected to pay, P&I constant.
NOTE_INT_RATE The loan interest rate as reported by the 4 Max length of 6 6
Servicer.
NET_INT_RATE The loan gross interest rate less the 4 Max length of 6 6
service fee rate as reported by the
Servicer.
SERV_FEE_RATE The servicer's fee rate for a loan as 4 Max length of 6 6
reported by the Servicer.
SERV_FEE_AMT The servicer's fee amount for a loan as 2 No commas(,) or 11
reported by the Servicer. dollar signs ($)
NEW_PAY_AMT The new loan payment amount as reported 2 No commas(,) or 11
by the Servicer. dollar signs ($)
NEW_LOAN_RATE The new loan rate as reported by the 4 Max length of 6 6
Servicer.
ARM_INDEX_RATE The index the Servicer is using to 4 Max length of 6 6
calculate a forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal balance 2 No commas(,) or 11
at the beginning of the processing cycle. dollar signs ($)
ACTL_END_PRIN_BAL The borrower's actual principal balance 2 No commas(,) or 11
at the end of the processing cycle. dollar signs ($)
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle MM/DD/YYYY 10
that the borrower's next payment is due
to the Servicer, as reported by Servicer.
SERV_CURT_AMT_1 The first curtailment amount to be 2 No commas(,) or 11
applied. dollar signs ($)
SERV_CURT_DATE_1 The curtailment date associated with the MM/DD/YYYY 10
first curtailment amount.
CURT_ADJ_ AMT_1 The curtailment interest on the first 2 No commas(,) or 11
curtailment amount, if applicable. dollar signs ($)
SERV_CURT_AMT_2 The second curtailment amount to be 2 No commas(,) or 11
applied. dollar signs ($)
SERV_CURT_DATE_2 The curtailment date associated with the MM/DD/YYYY 10
second curtailment amount.
CURT_ADJ_ AMT_2 The curtailment interest on the second 2 No commas(,) or 11
curtailment amount, if applicable. dollar signs ($)
C-1
EXHIBIT 1: CONTINUED STANDARD LOAN LEVEL FILE LAYOUT
MAX
COLUMN NAME DESCRIPTION DECIMAL FORMAT COMMENT SIZE
----------- ----------------------------------------------- ------- ---------------- ----
SERV_CURT_AMT_3 The third curtailment amount to be applied. 2 No commas(,) or 11
Dollar signs ($)
SERV_CURT_DATE_3 The curtailment date associated with the third MM/DD/YYYY 10
curtailment amount.
CURT_ADJ_AMT_3 The curtailment interest on the third 2 No commas(,) or 11
curtailment amount, if applicable. dollar signs ($)
PIF_AMT The loan "paid in full" amount as reported by 2 No commas(,) or 11
the Servicer. dollar signs ($)
PIF_DATE The paid in full date as reported by the MM/DD/YYYY 10
Servicer.
ACTION_CODE The standard FNMA numeric code used to indicate Action Code Key: 2
the default/delinquent status of a particular 15=Bankruptcy,
loan. 30=Foreclosure,
60=PIF,
63=Substitution,
65=Repurchase,
70=REO
INT_ADJ_AMT The amount of the interest adjustment as 2 No commas(,) or 11
reported by the Servicer. dollar signs ($)
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, if 2 No commas(,) or 11
applicable. dollar signs ($)
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if applicable. 2 No commas(,) or 11
dollar signs ($)
LOAN_LOSS_AMT The amount the Servicer is passing as a loss, 2 No commas(,) or 11
if applicable. dollar signs ($)
PLUS THE FOLLOWING APPLICABLE FIELDS:
SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount due 2 No commas(,) or 11
at the beginning of the cycle date to be passed dollar signs ($)
through to investors.
SCHED_END_PRIN_BAL The scheduled principal balance due to 2 No commas(,) or 11
investors at the end of a processing cycle. dollar signs ($)
SCHED_PRIN_AMT The scheduled principal amount as reported by 2 No commas(,) or 11
the Servicer for the current cycle -- only dollar signs ($)
applicable for Scheduled/Scheduled Loans.
SCHED_NET_INT The scheduled gross interest amount less the 2 No commas(,) or 11
service fee amount for the current cycle as dollar signs ($)
reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
ACTL_PRIN_AMT The actual principal amount collected by the 2 No commas(,) or 11
Servicer for the current reporting cycle -- dollar signs ($)
only applicable for Actual/Actual Loans.
ACTL_NET_INT The actual gross interest amount less the 2 No commas(,) or 11
service fee amount for the current reporting dollar signs ($)
cycle as reported by the Servicer -- only
applicable for Actual/Actual Loans.
PREPAY_PENALTY_ AMT The penalty amount received when a borrower 2 No commas(,) or 11
prepays on his loan as reported by the dollar signs ($)
Servicer.
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the loan 2 No commas(,) or 11
waived by the servicer. dollar signs ($)
C-2
EXHIBIT 1: CONTINUED STANDARD LOAN LEVEL FILE LAYOUT
MAX
COLUMN NAME DESCRIPTION DECIMAL FORMAT COMMENT SIZE
----------- ----------------------------------------------- ------- ---------------- ----
MOD_DATE The Effective Payment Date of the Modification MM/DD/YYYY 10
for the loan.
MOD_TYPE The Modification Type. Varchar - value 30
can be alpha or
numeric
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and interest 2 No commas(,) or 11
advances made by Servicer. dollar signs ($)
Flag to indicate if the repurchase of a loan is Y=Breach
BREACH_FLAG due to a breach of Representations and N=NO Breach 1
Warranties Let blank if N/A
C-3
EXHIBIT 2: MONTHLY SUMMARY REPORT BY SINGLE INVESTOR
MONTHLY SUMMARY REPORT
For Month Ended: mm/dd/yyyy Servicer Name _________________________________
Prepared by: _________________ Investor Nbr _________________________________
________________________________________________________________________________
SECTION 1. REMITTANCES AND ENDING BALANCES - REQUIRED DATA
Total
Total Ending Total
Monthly Unpaid Monthly
Beginning Ending Remittance Principal Principal
Loan Count Loan Count Amo Balance Balance
---------- ---------- ---------- --------- ---------
0 0 $0.00 $0.00 $0.00
PRINCIPAL CALCULATION
1. Monthly Principal Due +$0.00
------
2. Current Curtailments +$0.00
------
3. Liquidations +$0.00
------
4. Other (attach explanation) +$0.00
------
5. Principal Due $0.00
------
6. Interest (reported "gross") +$0.00
------
7. Interest Adjustments on Curtailments +$0.00
------
8. Servicing Fees -$0.00
------
9. Other Interest (attach explanation) +$0.00
------
10. Interest Due (need to subtract ser fee) $0.00
======
REMITTANCE CALCULATION
11. Total Principal and Interest Due (lines 5+10) +$0.00
------
12. Reimbursement of Non-Recoverable Advances -$0.00
------
13. Total Realized gains +$0.00
------
14. Total Realized Losses -$0.00
------
15. Total Prepayment Penalties +$0.00
------
16. Total Non-Supported Compensating Interest -$0.00
------
17. Other (attach explanation) $0.00
------
18. Net Funds Due on or before Remittance Date $$0.00
======
C-4
SECTION 2. DELINQUENCY REPORT - OPTIONAL DATA FOR LOAN ACCOUNTING
INSTALLMENTS DELINQUENT
In Real Estate Total Dollar
Total No. Total No. of 30- 60- 90 or more Foreclosure Owned Amount of
of Loans Delinquencies Days Days Days (Optional) (Optional) Delinquencies
--------- ------------- ---- ---- ---------- ----------- ----------- -------------
0 0 0 0 0 0 0 $0.00
SECTION 3. REG AB SUMMARY REPORTING - REPORT ALL APPLICABLE FIELDS
REG XX XXXXXX LOAN COUNT BALANCE
------------- ---------- -------
PREPAYMENT PENALTY AMT 0 $0.00
PREPAYMENT PENALTY AMT WAIVED 0 $0.00
DELINQUENCY P&I AMOUNT 0 $0.00
C-5
EXHIBIT D
EXHIBIT D: 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.
(a)
(b) 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.
D-1
(c) CREDITS:
14-21. Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid
instructions and Escrow Agent / Attorney
Letter of Proceeds Breakdown.
* Copy of EOB for any MI or gov't guarantee
* All other credits need to be clearly defined on the 332 form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial proceeds
and line (18b) for Part B/Supplemental proceeds.
TOTAL REALIZED LOSS (OR AMOUNT OF ANY GAIN)
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized gain, show the amount in parenthesis ( ).
D-2
EXHIBIT E
EXHIBIT : STANDARD FILE LAYOUT - DELINQUENCY REPORTING
* The column/header names in BOLD are the minimum fields Xxxxx Fargo must
receive from every Servicer
COLUMN/HEADER NAME DESCRIPTION DECIMAL FORMAT COMMENT
------------------ ---------------------------------------- ------- ----------------
SERVICER_LOAN_NBR A unique number assigned to a loan by
the Servicer. This may be different
than the LOAN_NBR
LOAN_NBR A unique identifier assigned to each
loan by the originator.
CLIENT_NBR Servicer Client Number
SERV_INVESTOR_NBR Contains a unique number as assigned by
an external servicer to identify a
group of loans in their system.
BORROWER_FIRST_NAME First Name of the Borrower.
BORROWER_LAST_NAME Last name of the borrower.
PROP_ADDRESS Street Name and Number of Property
PROP_STATE The state where the property located.
PROP_ZIP Zip code where the property is located.
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next MM/DD/YYYY
payment is due to the servicer at the
end of processing cycle, as reported by
Servicer.
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim MM/DD/YYYY
was filed.
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy
was filed.
BANKRUPTCY_CASE_NBR The case number assigned by the court
to the bankruptcy filing.
POST_PETITION_DUE_DATE The payment due date once the MM/DD/YYYY
bankruptcy 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.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was MM/DD/YYYY
Approved By The Servicer
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved
For A Loan Such As;
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is MM/DD/YYYY
Scheduled To End/Close
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is MM/DD/YYYY
Actually Completed
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the MM/DD/YYYY
servicer with instructions to begin
foreclosure proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to MM/DD/YYYY
Pursue Foreclosure
FIRST_LEGAL_DATE Notice of 1st legal filed by an MM/DD/YYYY
Attorney in a Foreclosure Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is MM/DD/YYYY
expected to occur.
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the 2 No commas(,) or
foreclosure sale. dollar signs ($)
EVICTION_START_DATE The date the servicer initiates MM/DD/YYYY
eviction of the borrower.
EVICTION_COMPLETED_DATE The date the court revokes legal MM/DD/YYYY
possession of the property from the
borrower.
E-1
LIST_PRICE The price at which an REO property is 2 No commas(,) or
marketed. dollar signs ($)
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
OFFER_AMT The dollar value of an offer for an REO 2 No commas(,) or
property. dollar signs ($)
OFFER_DATE_TIME The date an offer is received by DA MM/DD/YYYY
Admin or by the Servicer.
REO_CLOSING_DATE The date the REO sale of the property MM/DD/YYYY
is scheduled to close.
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is
occupied.
PROP_CONDITION_CODE A code that indicates the condition of
the property.
PROP_INSPECTION_DATE The date a property inspection is MM/DD/YYYY
performed.
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the 2
property based on brokers price opinion
or appraisal.
REPAIRED_PROP_VAL The amount the property would be worth 2
if repairs are completed pursuant to a
broker's price opinion or appraisal.
IF APPLICABLE:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
DELINQ_REASON_CODE The circumstances which caused a
borrower to stop paying on a loan. Code
indicates the reason why the loan is in
default for this cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed MM/DD/YYYY
With Mortgage Insurance Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or
dollar signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company MM/DD/YYYY
Disbursed Claim Payment
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid 2 No commas(,) or
On Claim dollar signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool MM/DD/YYYY
Insurance Company
POOL_CLAIM_AMT Amount of Claim Filed With Pool 2 No commas(,) or
Insurance Company dollar signs ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check MM/DD/YYYY
Was Issued By The Pool Insurer
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance 2 No commas(,) or
Company dollar signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With MM/DD/YYYY
HUD
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or
dollar signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or
dollar signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With MM/DD/YYYY
HUD
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or
dollar signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or
dollar signs ($)
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the MM/DD/YYYY
Veterans Admin
E-2
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA MM/DD/YYYY
Claim Payment
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or
dollar signs ($)
MOTION_FOR_RELIEF_DATE The date the Motion for Relief was 10 MM/DD/YYYY
filed
FRCLSR_BID_AMT The foreclosure sale bid amount 11 No commas(,)
or dollar
signs ($)
FRCLSR_SALE_TYPE The foreclosure sales results: REO,
Third Party, Conveyance to HUD/VA
REO_PROCEEDS The net proceeds from the sale of the No commas(,)
REO property. or dollar
signs ($)
BPO_DATE The date the BPO was done.
CURRENT_FICO The current FICO score
HAZARD_CLAIM_FILED_DATE The date the Hazard Claim was filed 10 MM/DD/YYYY
with the Hazard Insurance Company.
HAZARD_CLAIM_AMT The amount of the Hazard Insurance 11 No commas(,)
Claim filed. or dollar
signs ($)
HAZARD_CLAIM_PAID_DATE The date the Hazard Insurance Company 10 MM/DD/YYYY
disbursed the claim payment.
HAZARD_CLAIM_PAID_AMT The amount the Hazard Insurance 11 No commas(,)
Company paid on the claim. or dollar
signs ($)
ACTION_CODE Indicates loan status Number
NOD_DATE MM/DD/YYYY
NOI_DATE MM/DD/YYYY
ACTUAL_PAYMENT_PLAN_START_DATE MM/DD/YYYY
ACTUAL_PAYMENT_ PLAN_END_DATE
ACTUAL_REO_START_DATE MM/DD/YYYY
REO_SALES_PRICE Number
REALIZED_LOSS/GAIN As defined in the Servicing Agreement Number
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING
The LOSS MIT TYPE field should show the approved Loss Mitigation Code as
follows:
- ASUM- Approved Assumption
- BAP- Borrower Assistance Program
- CO- Charge Off
- DIL- Deed-in-Lieu
- FFA- Formal Forbearance Agreement
- MOD- Loan Modification
E-3
- PRE- Pre-Sale
- SS- Short Sale
- MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The OCCUPANT CODE field should show the current status of the property code as
follows:
- Mortgagor
- Tenant
- Unknown
- Vacant
The PROPERTY CONDITION field should show the last reported condition of the
property as follows:
- Damaged
- Excellent
- Fair
- Gone
- Good
- Poor
- Special Hazard
- Unknown
E-4
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT REASON CODE field should show the Reason for Delinquency as
follows:
DELINQUENCY CODE DELINQUENCY DESCRIPTION
---------------- -----------------------
001 FNMA-Death of principal mortgagor
002 FNMA-Illness of principal mortgagor
003 FNMA-Illness of mortgagor's family member
004 FNMA-Death of mortgagor's family member
005 FNMA-Marital difficulties
006 FNMA-Curtailment of income
007 FNMA-Excessive Obligation
008 FNMA-Abandonment of property
009 FNMA-Distant employee transfer
011 FNMA-Property problem
012 FNMA-Inability to sell property
013 FNMA-Inability to rent property
014 FNMA-Military Service
015 FNMA-Other
016 FNMA-Unemployment
017 FNMA-Business failure
019 FNMA-Casualty loss
022 FNMA-Energy environment costs
023 FNMA-Servicing problems
026 FNMA-Payment adjustment
027 FNMA-Payment dispute
029 FNMA-Transfer of ownership pending
030 FNMA-Fraud
031 FNMA-Unable to contact borrower
INC FNMA-Incarceration
E-5
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
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
E-6
EXHIBIT F
Portfolio Servicing Agreement, dated Jan 28, 2000, between Xxxxxxx Xxxxx Credit
Corporation and Cendant Mortgage Corporation
Amendment Agreement No. 1, dated as of January 2, 2001, between Xxxxxxx Xxxxx
Credit Corporation and Cendant Mortgage Corporation
[Intentionally Omitted]
F-1
EXHIBIT X
FORM OF ASSESSMENT OF COMPLIANCE
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series 2007-3
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Loan Agency - Xxxxxxx Xxxxx Mortgage Backed
Securities Trust, Series 2007-3
Re: Mortgage Loan Flow Purchase, Sale and Servicing Agreement, dated as of
March 27, 2001 (the "Agreement"), among Xxxxxx'x Gate Residential
Mortgage Trust, as seller, Xxxxxxx Xxxxx Mortgage Capital, Inc., as
purchaser and PHH Mortgage Corporation, as servicer (the "Servicer"),
in connection with the Servicer's responsibilities [under] the Pooling
and Servicing Agreement, dated July 1, 2007, among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor, HSBC Bank USA, National
Association, as trustee, and Xxxxx Fargo Bank, N.A., as master
servicer and securities administrator, relating to Xxxxxxx Xxxxx
Mortgage Backed Securities Trust, Series MLMBS 2007-3 (the "Issuing
Entity")
For the calendar year ending December 31, 200[_] or portion thereof, [PHH
Mortgage Corporation, as a Servicer] [Xxxxx Fargo Bank, N.A., as [Master
Servicer] [Securities Administrator]] for the Issuing Entity has complied in all
material respects with the Relevant Servicing Criteria in Exhibit Y of the
Agreement.
All capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Agreement.
Date: _______________________________
[PHH MORTGAGE CORPORATION] [XXXXX FARGO
BANK, NATIONAL ASSOCIATION]
By:
------------------------------------
Name:
Title:
X-1
ACKNOWLEDGED AND AGREED:
[XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Master Servicer]
[HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee]
By:
---------------------------------
Name:
Title:
XXXXXXX XXXXX MORTGAGE INVESTORS, INC., as Depositor
By:
---------------------------------
Name:
Title:
X-2
EXHIBIT Y
RELEVANT SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by PHH Mortgage Corporation
[Name of Subservicer] shall address, at a minimum, the criteria identified as
below as "Applicable Servicing Criteria":
APPLICABLE
SERVICING CRITERIA SERVICING
REFERENCE CRITERIA CRITERIA
--------- ------------------------------------------------------------- ----------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any X
performance or other triggers and events of default in
accordance with the transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third X
parties, policies and procedures are instituted to monitor
the third party's performance and compliance with such
servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a
back-up servicer for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect X
on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of the
transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate X
custodial bank accounts and related bank clearing accounts no
more than two business days following receipt, or such other
number of days specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor X
or to an investor are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash X
flows or distributions, and any interest or other fees
charged for such advances, are made, reviewed and approved as
specified in the transaction agreements.
Y-1
APPLICABLE
SERVICING CRITERIA SERVICING
REFERENCE CRITERIA CRITERIA
--------- ------------------------------------------------------------- ----------
1122(d)(2)(iv) The related accounts for the transaction, such as cash X
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured X
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized X
access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all X
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts. These
reconciliations are (A) mathematically accurate; (B) prepared
within 30 calendar days after the bank statement cutoff date,
or such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than
the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items
are resolved within 90 calendar days of their original
identification, or such other number of days specified in the
transaction agreements.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed with the X
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance
with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the terms specified in the transaction agreements; (C)
are filed with the Commission as required by its rules and
regulations; and (D) agree with investors' or the trustee's
records as to the total unpaid principal balance and number
of mortgage loans serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in X
accordance with timeframes, distribution priority and other
terms set forth in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two X
business days to the Servicer's investor records, or such
other number of days specified in the transaction agreements.
Y-2
APPLICABLE
SERVICING CRITERIA SERVICING
REFERENCE CRITERIA CRITERIA
--------- ------------------------------------------------------------- ----------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree X
with cancelled checks, or other form of payment, or custodial
bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as X
required by the transaction agreements or related mortgage
loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as X
required by the transaction agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool X
are made, reviewed and approved in accordance with any
conditions or requirements in the transaction agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in X
accordance with the related mortgage loan documents are
posted to the Servicer's obligor records maintained no more
than two business days after receipt, or such other number of
days specified in the transaction agreements, and allocated
to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree X
with the Servicer's records with respect to an obligor's
unpaid principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's X
mortgage loans (e.g., loan modifications or re-agings) are
made, reviewed and approved by authorized personnel in
accordance with the transaction agreements and related pool
asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, X
modifications and deeds in lieu of foreclosure, foreclosures
and repossessions, as applicable) are initiated, conducted
and concluded in accordance with the timeframes or other
requirements established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during X
the period a mortgage loan is delinquent in accordance with
the transaction agreements. Such records are maintained on at
least a monthly basis, or such other period specified in the
transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling plans
in cases where delinquency is deemed temporary (e.g., illness
or unemployment).
Y-3
APPLICABLE
SERVICING CRITERIA SERVICING
REFERENCE CRITERIA CRITERIA
--------- ------------------------------------------------------------- ----------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage X
loans with variable rates are computed based on the related
mortgage loan documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as X
escrow accounts): (A) such funds are analyzed, in accordance
with the obligor's mortgage loan documents, on at least an
annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid,
or credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C) such funds
are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number
of days specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or X
insurance payments) are made on or before the related penalty
or expiration dates, as indicated on the appropriate bills or
notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior
to these dates, or such other number of days specified in the
transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to X
be made on behalf of an obligor are paid from the servicer's
funds and not charged to the obligor, unless the late payment
was due to the obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within X
two business days to the obligor's records maintained by the
servicer, or such other number of days specified in the
transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are X
recognized and recorded in accordance with the transaction
agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is
maintained as set forth in the transaction agreements.
Y-4
EXHIBIT Z
FORM OF BACK-UP CERTIFICATION
Re: The [________] agreement dated as of [____], 200[__] (the "Agreement"),
among [IDENTIFY PARTIES]
I, _____________________________, the _____________________________ of
[NAME OF COMPANY], certify to [the Purchaser], [the Depositor], and the
Master Servicer [,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 (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 [Xxxxx Fargo] 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 [Xxxxx Fargo];
(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 [Xxxxx
Fargo]. Any material instances of
Z-1
noncompliance described in such reports have been disclosed to [Xxxxx
Fargo]. Any material instance of noncompliance with the Servicing Criteria
has been disclosed in such reports.
Date:
-------------------------------
By:
Name:
-------------------------------
Z-2
EXHIBIT Z-1
FORM OF ITEM 1123 CERTIFICATION OF SERVICER
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: Mortgage Loan Flow Purchase, Sale and Servicing Agreement, dated as of
March 27, 2001 (the "Agreement"), among Xxxxxx'x Gate Residential Mortgage
Trust, as seller, Xxxxxxx Xxxxx Mortgage Capital, Inc., as purchaser, and
PHH Mortgage Corporation, as servicer (the "Servicer")
I, [identify name of certifying individual], [title of certifying individual] of
[[name of servicing company] (the "Servicer")], hereby certify that:
(1) A review of the activities of the Servicer during the preceding calendar
year and of the performance of the Servicer under the Pooling and Servicing
Agreement (the "Agreement"), dated as of July 1, 2007, among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor, HSBC Bank USA, National Association, as
trustee, Xxxxx Fargo Bank, N.A., as master servicer and securities administrator
has been made under my supervision; and
(2) To the best of my knowledge, based on such review, the Servicer has
fulfilled all its obligations [under] the Agreement in all material respects
throughout such year or a portion thereof[, or, if there has been a failure to
fulfill any such obligation in any material respect, I have specified below each
such failure known to me and the nature and status thereof].
Date:
[Servicer]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
X-0-0
XXXXXXX X-0
FORM OF ANNUAL CERTIFICATION
Re: The [________] agreement dated as of [ l, 200[__] (the "Agreement"),
among [IDENTIFY PARTIES]
I, ______________________________, the _____________________ of [NAME OF
COMPANY] (the "Company"), certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], and their officers, with
the knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the Annual Independent Public Accountants' Servicing Report
(as defined in the Agreement), 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 and the Annual Independent
Public Accountants' Servicing 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 Annual Independent Public Accountants'
Servicing 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
Z-2-1
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:
Z-2-2
