Exhibit 10(m)
SERVICING AGREEMENT
Dated as of November 1, 1996
between
MAIN PLACE REAL ESTATE INVESTMENT TRUST
Owner
and
NATIONSBANK, N.A.
Servicer
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS................................................................................................... 1
ARTICLE II
ADMINISTRATION AND SERVICING OF THE MORTGAGE NOTES............................................................ 5
Section 2.01. Contract for Servicing; Possession of Servicing Files.............................. 5
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Section 2.02. Commencement of Servicing Responsibilities......................................... 6
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Section 2.03. The Servicer to Act as Servicer.................................................... 6
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Section 2.04. Collection of Mortgage Note Payments............................................... 7
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Section 2.05. Foreclosure........................................................................ 7
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Section 2.06. Sub-Servicing Agreements........................................................... 7
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Section 2.07. Maintenance of Flood Insurance..................................................... 8
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Section 2.08. Notification of Adjustments........................................................ 8
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Section 2.09. Completion and Recordation of Assignment of Mortgage Notices....................... 9
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Section 2.10. Servicing Compensation............................................................. 9
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Section 2.11. Withdrawals and Substitutions of Mortgage Notes.................................... 10
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ARTICLE III
REMITTANCES BY THE SERVICER................................................................................... 10
Section 3.01. Remittances to Owner............................................................... 10
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES................................................................................ 11
Section 4.01. Representations and Warranties of the Servicer..................................... 11
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Section 4.02. Remedies for Breach of Representations and Warranties of the Servicer.............. 12
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ARTICLE V
THE SERVICER.................................................................................................. 13
Section 5.01. Corporate Existence of the Servicer; Status as Servicer; Merger.................... 13
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Section 5.02. Performance of Obligations......................................................... 14
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Section 5.03. The Servicer Not to Resign; Assignment............................................. 14
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ARTICLE VI
DEFAULT....................................................................................................... 15
Section 6.01. Events of Default.................................................................. 15
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Section 6.02. No Effect on Other Parties......................................................... 16
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Section 6.03. Rights Cumulative.................................................................. 16
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ARTICLE VII
MISCELLANEOUS................................................................................................. 17
Section 7.01 Successor to the Servicer.......................................................... 17
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Section 7.02. Termination of Agreement........................................................... 18
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Section 7.03. Amendment.......................................................................... 18
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Section 7.04. Governing Law...................................................................... 18
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Section 7.05. Notices............................................................................ 18
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Section 7.06. Severability of Provisions......................................................... 19
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Section 7.07. Inspection and Audit Rights........................................................ 19
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Section 7.08. Binding Effect..................................................................... 20
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Section 7.09. Article and Section Headings....................................................... 20
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Section 7.10. Counterparts....................................................................... 20
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SERVICING AGREEMENT
Servicing Agreement, dated November 1, 1996, between MAIN
PLACE REAL ESTATE INVESTMENT TRUST, a Maryland real estate investment trust
(herein, together with its successors and assigns, called the "Owner"), and
NATIONSBANK, N.A., a national banking association (herein, together with its
successors and assigns, called the "Servicer").
PRELIMINARY STATEMENT
The Owner is the holder and/or owner of all of the beneficial
ownership interests in the Mortgage Notes. The Servicer is a contractor engaged
in the business of servicing mortgage loans.
The Servicer and the Owner desire to enter into this Agreement
to provide, among other things, for the servicing by the Servicer of the
Mortgage Notes.
ARTICLE I
DEFINITIONS
The following terms have the respective meanings set forth
below for all purposes of this Agreement, and the definitions of such terms are
applicable to the singular as well as to the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such terms:
Accepted Servicing Practices: With respect to any Mortgage
Notes, the services and duties customary to the servicing by prudent lending
institutions of mortgages of the same type as such Mortgage Notes in the
jurisdictions where the related Mortgaged Properties are located.
Agreement: This Servicing Agreement and all amendments hereof
and supplements hereto.
Assignment of Mortgage: An assignment of the Mortgage, notice
of transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the transfer of the Mortgage to the party indicated therein, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering the Mortgage Notes secured by Mortgaged
Properties located in the same jurisdiction, if permitted by law.
Best Efforts: Efforts determined to be reasonably diligent by
the Owner or Servicer, as the case may be, in its sole discretion. Such efforts
do not require the Owner or Servicer, as the case may be, to enter into any
litigation, arbitration or other legal or quasi-legal proceeding, nor do they
require the Owner or Servicer, as the case may be, to advance or expend fees or
sums of money in addition to those specifically set forth in this Agreement.
Business Day: Any day other than (i) a Saturday, (ii) a
Sunday, or (iii) a day that is either a legal holiday or a day on which banking
institutions are authorized or obligated by law or regulation to close in the
State of North Carolina (or, for purposes of remittances by the Servicer, any
state in which functions relating to the collection of payments are performed).
Condemnation Proceeds: All awards of settlements in respect of
a Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Note documents.
Eligible Mortgage Note: Any Mortgage Note meeting the
requirements of ss. 856 of the Internal Revenue Code of 1986, as amended, and
the rules and regulations thereunder.
Event of Default: Any event set forth in Section 6.01.
Independent Accountant: Any accountant, who may also be the
accountant who audits the books of the Servicer, who is independent with respect
to the Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Note, whether through the sale or assignment
of such Mortgage Note, trustee's sale, foreclosure sale or otherwise, or the
sale of the related REO Property, if the Mortgaged Property is acquired in
satisfaction of the Mortgage Note.
Lock-box: Any lock-box account maintained by the Servicer at
any financial institution for the purpose of collecting Monthly Payments on
Mortgage Notes serviced hereunder.
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Monthly Payment: The scheduled monthly payment of principal
and interest on a Mortgage Note.
Mortgage: The mortgage, deed of trust, security agreement or
other instrument securing a Mortgage Note, which creates a lien on an
unsubordinated estate in real property securing such Mortgage Note.
Mortgage Interest Rate: The annual rate of interest borne at
any time by a Mortgage Note.
Mortgage Note: The note or other evidence of the indebtedness
of a Mortgagor secured by a Mortgage, each Mortgage Note subject to this
Agreement being identified on the Mortgage Note Schedule.
Mortgage Note Schedule: The schedule of Mortgage Notes
delivered by the Owner to the Servicer setting forth information with respect to
such Mortgage Notes, which schedule shall be amended from time to time to
reflect the addition of Mortgage Notes to, or the withdrawal of Mortgage Notes
from, the terms of this Agreement.
Mortgaged Property: The real property securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
NationsBank, N.A.: NationsBank, N.A., a national banking
association.
NationsBank South: NationsBank, N.A. (South), a national
banking association.
NRSRO: Any nationally recognized statistical rating
organization.
Officer's Certificate: A certificate signed by the Chairman of
the Board, the Vice Chairman of the Board, the President or any Vice President
of the Servicer, and delivered to the Owner as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
an employee of the Servicer, and who is reasonably acceptable to the Owner.
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Principal Prepayment: Any payment or other recovery of
principal on a Mortgage Note which is received in advance of its scheduled due
date, including any prepayment penalty or premium thereon, and which is not
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
REO Disposition: The final sale by the Servicer, on behalf of
the Owner, of any REO Property.
REO Disposition Proceeds: All amounts received with respect
to an REO Disposition.
REO Property: A Mortgaged Property acquired by the Servicer on
behalf and in the name of the Owner through foreclosure or by deed in lieu of
foreclosure.
Servicing Advances: All customary, reasonable and necessary
"out of pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) incurred in the performance by the Servicer of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, (b) any enforcement or
administrative or judicial proceedings, including foreclosures, (c) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, (d) where collected, taxes,
assessments, water rates, sewer rates and other charges which are or may become
a lien upon the Mortgaged Property, and any flood insurance coverage and (e) any
losses sustained by the Servicer with respect to the liquidation of the
Mortgaged Property.
Servicing Fee:
(a) Subject to clause (b) hereof, the lesser of (i) the
consideration specified in Annex I or any supplemental annex (subject to
adjustment pursuant to clause (b) hereof) or (ii) such amount as would be
charged by an unaffiliated third party in an arm's-length transaction for any
relevant service. The Servicer shall invoice Owner monthly. Payment by Owner
shall be due not later than 30 days after delivery by Servicer to Owner of an
invoice detailing the services provided and calculation of the charges for such
services.
(b) The prices described in Annex I may be changed
periodically by the Servicer without notice to Owner. However, such prices shall
be evaluated yearly during a meeting between representatives of the Servicer and
the Owner, at which time Owner shall be given 30 days to reject any proposed
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pricing changes and any changes instituted since the previous annual evaluation.
In the event Owner rejects such pricing changes, Owner shall give written notice
of such rejection and this Agreement will terminated 90 days from the date of
such rejection notice. Upon receipt of written notice of rejection of pricing
changes, Servicer shall adjust Owner's pricing to reflect the previously
approved pricing and rebate any excess payment where applicable. In the event
Owner does not reject such pricing within the time specified, Owner shall be
deemed to have accepted such pricing changes. Owner shall be furnished with a
new Annex I, a copy of which will then be attached to this Agreement and thereby
supersede any previous Annex I.
(c) Payment of the Servicing Fee and all other payments
pursuant to this Agreement shall be effected by a monthly allocation of costs on
the general ledger of the Owner. The parties hereto may agree to any other
procedure to effect payment, including but not limited to changes in the
frequency of allocation.
Servicing File: The items pertaining to a particular Mortgage
Note including, but not limited to, the original Mortgage Note, the computer
files, data disks, books, records, data tapes, notes, and all additional
documents generated as a result of or utilized in originating and/or servicing
each Mortgage Note, which are held in trust for the Owner by the Servicer.
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ARTICLE II
ADMINISTRATION AND SERVICING OF THE MORTGAGE NOTES
Section 2.01. Contract for Servicing; Possession of Servicing Files.
The Owner, by execution and delivery of this Agreement, does hereby contract
with the Servicer, subject to the terms of this Agreement, for the servicing of
the Mortgage Notes that are from time to time subject to this Agreement. With
respect to each Mortgage Note listed on the Mortgage Note Schedule as of the
date of this Agreement for which the Servicer does not have possession of a
Servicing File as of the date hereof, the Owner shall cause to be delivered or
will use its Best Efforts to cause to be delivered the related Servicing File to
the Servicer as soon as practicable. With respect to each Mortgage Note that
becomes subject to this Agreement after the date hereof, the Owner shall cause
the Mortgage Note Schedule to be amended to reflect the Mortgage Notes then
subject to this Agreement and shall cause to be delivered or will use its Best
Efforts to cause to be delivered as soon as practicable each related Servicing
File to the Servicer. Each Servicing File delivered to the Servicer shall be
held by the Servicer in order to service the Mortgage Notes pursuant to this
Agreement and is and shall be held in trust as agent for the Owner and for the
benefit of the Owner as the owner thereof. The Servicer's possession of any
Servicing File shall be at the will of the Owner for the sole purpose of
facilitating servicing of the related Mortgage Note pursuant to this Agreement,
and such retention and possession by the Servicer shall be in a custodial
capacity only. The ownership of each Mortgage Note, Mortgage, and the contents
of the Servicing File shall be vested in the Owner and the ownership of all
records and documents with respect to the related Mortgage Loan prepared by or
which come into the possession of the Servicer shall immediately vest in the
Owner and shall be retained and maintained, in trust, by the Servicer at the
will of the Owner in such custodial capacity only.
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Section 2.02. Commencement of Servicing Responsibilities.
As of the date hereof, the Servicer shall assume all servicing
responsibilities hereunder with respect to the Mortgage Notes.
Section 2.03. The Servicer to Act as Servicer.
(a) The Servicer, as an independent contractor, shall
diligently service and administer the Mortgage Notes from and after the date
hereof and shall have full power and authority, acting alone, to do any and all
things in connection with such servicing and administration which the Servicer
may deem necessary or desirable, consistent with Accepted Servicing Practices
where such practices do not conflict with the requirements of this Agreement,
including taking all actions that a mortgagee is permitted or required to take.
(b) Without limiting the generality of the foregoing, the
Owner and the Servicer hereby agree as follows:
(i) The Servicer may waive any prepayment charge,
assumption fee, late payment charge or any other charge in connection
with the prepayment of a Mortgage Note;
(ii) The Servicer may arrange with a mortgagor a plan
of relief, including a modification or extension of the Mortgage Note,
when appropriate, rather than recommending liquidation;
(iii) The Servicer shall enforce "due-on-sale" clauses
with respect to Mortgage Notes; provided, however, where an assumption
of, or substitution of liability with respect to, a Mortgage Note is
required by law the Servicer may permit the assumption of a Mortgage
Note, pursuant to which the mortgagor shall remain liable on the
Mortgage Note, or a substitution of liability with respect to such
Mortgage Note, pursuant to which the new Mortgagor shall be substituted
for the original Mortgagor as being liable on the Mortgage Note;
(iv) The Servicer may give any consents under the
terms and provisions of any Mortgage Note, including, without
limitation, consents to the placing of easements, covenants, conditions
and restrictions on any Mortgaged Property; and
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(v) The Servicer may permit the modification of an
Eligible Mortgage Note which the related Mortgagor has indicated a
desire to refinance provided that any such Mortgage Note would continue
to be Eligible Mortgage Note following such modification;
(c) The Servicer shall establish and maintain adequate and
customary books and records with respect to each Mortgage Note and, upon request
of the Owner shall, within a reasonable time following the Servicer's receipt of
such request, furnish the same (in the form of either an original document or a
certified true copy of such original document) to the Owner. In the event of a
request for any non-standard report, the Servicer and the Owner shall mutually
agree in writing to a reasonable expense reimbursement payable by the Owner to
the Servicer for such report.
Section 2.04. Collection of Mortgage Note Payments.
Continuously from the date hereof until the date each Mortgage
Note ceases to be subject to this Agreement, the Servicer shall proceed
diligently to collect all payments due under each of the Mortgage Notes when the
same shall become due and payable.
Section 2.05. Foreclosure.
The Servicer shall process and manage the foreclosure or other
acquisition of the property securing any Mortgage Note; and pending completion
of any such foreclosure, the protection of the Mortgaged Property from waste and
vandalism. The Servicer will thereafter assign or convey to the Owner any title,
equity or other property or right acquired by such proceedings. In no event
shall the Servicer be required to take title in its name to any Mortgaged
Property which has, or may reasonably be deemed to have, an environmental or
similar problem or defect for which the Servicer would become liable by reason
of its holding title to such property. The Owner agrees promptly to reimburse
the Servicer for its reasonable Servicing Advances incurred in complying with
its obligations under this paragraph, including attorney's fees. In case of a
voluntary deed in lieu of foreclosure or the purchase of any such property by
the Owner or for its account, the Owner will assume responsibility for the same.
The marketing and sales of all REO Properties will be the responsibility of the
Servicer, on behalf of the Owner.
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Section 2.06. Sub-Servicing Agreements.
Any provision of this Agreement notwithstanding, the Servicer
may contract with other Persons for the performance of its responsibilities,
duties and obligations under this Agreement to service and administer any of the
Mortgage Notes, provided that none of the provisions of this Section 2.06
relating to agreements or arrangements between the Servicer and other Persons,
or to actions taken through any such other Persons or otherwise, shall be deemed
to relieve the Servicer of any of its duties and obligations to the Owner with
respect to the servicing and administration of the Mortgage Notes, and the
Servicer shall be obligated with respect thereto to the same extent and under
the same terms and conditions as if it alone were performing all duties and
obligations in connection with servicing and administering the Mortgage Notes.
The Servicer shall be entitled to enter into any agreement with any Person
performing services for it related to its duties and obligations under this
Agreement for indemnification of the Servicer by such Person, and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification. Any transactions or services relating to the Mortgage Notes
involving any Person performing services for the Servicer shall be deemed to be
between such Person and the Servicer alone, and the Owner shall not be deemed to
be parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to any such Person.
Section 2.07. Maintenance of Flood Insurance.
With respect to any Mortgaged Property located in an area
identified by the Federal Emergency Management Agency as having special flood
hazards and as to which flood insurance has been made available, the Servicer
shall cause to be maintained a flood insurance policy maintained with a
generally acceptable insurance carrier meeting the requirements of the current
guidelines of the Federal Insurance Administration. Such flood insurance policy
will provide coverage in an amount not less than the least of (i) the unpaid
principal balance of the Mortgage Note, (ii) the insurable value of the
Mortgaged Property and (iii) the maximum amount of insurance available under the
Flood Disaster Protection Act of 1973, as amended.
In the event the Servicer receives actual notice of any loss
or damage to any property securing a Mortgage Note, the Servicer will proceed
diligently to adjust any loss or damage claim, and to protect the interest of
the mortgagee under any such flood insurance policy covering the incidence of
damage. In the event that the Owner shall request an inspection by an engineer
or other professional construction inspector with respect to any such repairs,
the Servicer will arrange for such inspection.
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Section 2.08. Notification of Adjustments.
With respect to each adjustable rate Mortgage Note the
Servicer shall adjust the Mortgage Interest Rate on the related interest rate
adjustment date and shall adjust the Monthly Payment on the related mortgage
payment adjustment date, if applicable, in compliance with the requirements of
applicable law and the related Mortgage Note. The Servicer shall execute and
deliver any and all necessary notices required under applicable law and the
terms of the related Mortgage Note regarding the Mortgage Interest Rate and
Monthly Payment adjustments. The Servicer shall promptly, upon written request
therefor, deliver to the Owner such notifications and any additional applicable
data regarding such adjustments and the methods used to calculate and implement
such adjustments. Upon the discovery by the Servicer or the receipt of notice
from the Owner that the Servicer has failed to adjust a Mortgage Interest Rate
or Monthly Payment in accordance with the terms of the related Mortgage Note,
the Servicer shall immediately remit to the Owner from its own funds the amount
of any interest loss or deferral caused thereby.
Section 2.09. Completion and Recordation of Assignment of Mortgage Notices.
To the extent permitted by applicable law, each of the
Assignments of Mortgage is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected at the Owner's expense at the direction of the Owner. If
applicable, at the Owner's direction, the Servicer shall cause the endorsements
on the Mortgage Note, the Assignment of Mortgage and the assignment of security
agreement to be completed.
Section 2.10. Servicing Compensation.
As consideration for servicing the Mortgage Notes subject to
this Agreement, the Servicer shall receive the relevant Servicing Fee for each
Mortgage Note remaining subject to this Agreement.
In addition, the Servicer shall be entitled to retain as
additional compensation the late charges and other fees and expenses related to
loan assumptions, delinquencies, modifications, partial releases of security and
releases for payment in full, if any, collected under the applicable loan
documents or customarily collected by servicers consistent with Accepted
Servicing Practices.
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The Servicer shall be required to pay all expenses incurred by
it in connection with its servicing activities hereunder and shall not be
entitled to reimbursement thereof except as specifically provided for herein.
Section 2.11. Withdrawals and Substitutions of Mortgage Notes.
Upon notice to the Servicer, the Owner may cause Mortgage
Notes to become subject to the terms of this Agreement or remove Mortgage Notes
from the terms of this Agreement. The addition of Mortgage Notes under this
Section 2.12 shall be in accordance with the provisions of Section 2.01. In
connection with the removal of any Mortgage Notes under this Section 2.12, the
Servicer shall promptly transfer any funds received with respect to such
Mortgage Notes not due to be paid to the Owner or to such other Person as the
Owner may direct, and the Servicer shall take such other actions as the Owner
may reasonably request to transfer the Servicing Files with respect to such
Mortgage Notes to the Owner or at the direction of the Owner.
ARTICLE III
REMITTANCES BY THE SERVICER
Section 3.01. Remittances to Owner.
Subject to the provisions of this Section 3.01, the Servicer
shall cause to be remitted nightly from the applicable Lock-box to the Owner all
amounts collected by the Servicer pursuant to the Mortgage Notes as follows:
(i) All payments on account of principal and
interest received by the Servicer on the Mortgage Notes
including Principal Prepayments (in whole or in part);
(ii) All Liquidation Proceeds, net of expenses
incurred in connection with any liquidation;
(iii) Any amounts required to be deposited or
credited by the Servicer in connection with interest loss or
deferral as a result of a failure to adjust a Mortgage
Interest Rate or Monthly Payment under Section 2.09 hereof.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Servicer.
The Servicer, as a condition to the consummation of the
transactions contemplated hereby, makes the following representations and
warranties to the Owner as of the date hereof:
(a) Due Organization and Authority. The Servicer is a national
banking association duly organized, validly existing and in good standing under
the laws of the United States and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good standing
in each state where a Mortgaged Property is located if the laws of such state
require licensing or qualification in order to conduct business of the type
conducted by the Servicer, and in any event the Servicer is in compliance with
the laws of any such state to the extent necessary to ensure the enforceability
of the terms of this Agreement; the Servicer has the full corporate power and
authority to execute and deliver this Agreement and to perform in accordance
herewith; the execution, delivery and performance of this Agreement by the
Servicer and the consummation of the transactions contemplated hereby have been
duly and validly authorized; this Agreement evidences the valid, binding and
enforceable obligation of the Servicer and all requisite corporate action has
been taken by the Servicer to make this Agreement valid and binding upon the
Servicer in accordance with its terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Servicer;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition of the servicing responsibilities by the Servicer of
the transactions contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions of this Agreement, will conflict with or result in a
breach of any of the terms, conditions or provisions of the Servicer's charter
or by-laws or any legal restriction or any agreement or instrument to which the
Servicer is now a party or by which it is bound, or constitute a default or
result in an acceleration under any of the foregoing, or result in the violation
of any law, rule, regulation, order, judgment or decree to which the Servicer or
its property is subject, or impair the ability of the Servicer to service the
Mortgage Notes, or impair the value of the Mortgage Notes;
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(d) Ability to Perform. The Servicer does not believe,
nor does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement;
(e) No Litigation Pending. There is no action, suit,
proceeding or investigation pending or, to the best of the Servicer's knowledge,
threatened against the Servicer which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Servicer, or in any
material impairment of the right or ability of the Servicer to carry on its
business substantially as now conducted, or in any material liability on the
part of the Servicer, or which would draw into question the validity of this
Agreement or of any action taken or to be taken in connection with the
obligations of the Servicer contemplated herein, or which would be likely to
impair materially the ability of the Servicer to perform under the terms of this
Agreement;
(f) No Consent Required. No consent, approval,
authorization or order of any court or governmental agency or body is required
for the execution, delivery and performance by the Servicer of or compliance by
the Servicer with this Agreement, or if required, such approval has been
obtained prior to the date hereof;
(g) No Untrue Information. Neither this Agreement nor any
statement, report or other document furnished or to be furnished pursuant to
this Agreement or in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained therein not misleading.
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Section 4.02. Remedies for Breach of Representations and Warranties of the
Servicer.
It is understood and agreed that the representations and
warranties set forth in Section 4.01 shall survive the engagement of the
Servicer to perform the servicing responsibilities as of the date hereof
hereunder and the delivery of the Servicing Files to the Servicer and shall
inure to the benefit of the Owner. Upon discovery by either the Servicer or the
Owner of a breach of any of the foregoing representations and warranties which
materially and adversely affects the ability of the Servicer to perform its
duties and obligations under this Agreement or otherwise materially and
adversely affects the value of the Mortgage Notes, the Mortgaged Property or the
priority of the security interest on such Mortgaged Property or the interest of
the Owner, the Person discovering such breach shall give prompt written notice
to the other party to this Agreement.
Within 60 days of the earlier of either discovery by or notice
to the Servicer of any breach of a representation or warranty set forth in
Section 4.01 which materially and adversely affects the ability of the Servicer
to perform its duties and obligations under this Agreement or otherwise
materially and adversely affects the value of the Mortgage Notes, the Mortgaged
Property or the priority of the security interest on such Mortgaged Property,
the Servicer shall use its Best Efforts promptly to cure such breach in all
material respects and, if such breach cannot be cured, the Servicer shall, at
the Owner's option, assign the Servicer's rights and obligations under this
Agreement (or respecting the affected Mortgage Notes) to a successor servicer,
subject to the approval of the Owner, which approval shall be in the Owner's
sole discretion. Such assignment shall be made in accordance with Section 7.01.
In addition, the Servicer shall indemnify the Owner and hold
the Owner harmless against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and other
reasonable out-of-pocket costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach of
the Servicer representations and warranties contained in this Agreement.
Any cause of action against the Servicer relating to or
arising out of the breach of any representations and warranties made in Section
4.01 shall accrue upon (i) discovery of such breach by the Servicer or notice
thereof by the Owner to the Servicer, (ii) failure by the Servicer to cure such
breach within the applicable cure period, and (iii) demand upon the Servicer by
the Owner for compliance with this Agreement.
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ARTICLE V
THE SERVICER
Section 5.01. Corporate Existence of the Servicer; Status as Servicer; Merger.
(a) Subject to Section 5.01(b) hereof, the Servicer shall keep
in full force its existence, rights and franchises as a corporation, and will
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Mortgage Notes and this
Agreement.
(b) Any Person into which the Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Servicer shall be a party, or any Person succeeding
to the properties and assets of the Servicer substantially as a whole, shall be
the successor of the Servicer hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, provided, however, that the successor or
surviving Person shall execute an agreement of assumption to perform every
obligation of the Servicer hereunder and shall be an institution having a net
worth of not less than $10,000,000.
Section 5.02. Performance of Obligations.
(a) The Servicer shall diligently perform and observe all
of its obligations and agreements contained in this Agreement.
(b) The Servicer shall not take any action, or permit any
action to be taken by others, which would excuse any Person from any of its
covenants or obligations under any Mortgage Note, or which would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, a Mortgage Note or any such instrument, except
as expressly provided herein or therein.
15
Section 5.03. The Servicer Not to Resign; Assignment.
(a) The Owner has entered into this Agreement with the
Servicer in reliance upon the status of the Servicer as a mortgage servicer, and
the representations as to the adequacy of its servicing facilities, plant,
personnel, records and procedures, its integrity, reputation and financial
standing, and the continuance thereof. Therefore, the Servicer shall not assign
this Agreement or the servicing responsibilities hereunder or delegate its
rights or duties hereunder or any portion hereof (to other than a Subservicer)
or sell or otherwise dispose of all or substantially all of its property or
assets without the prior written consent of the Owner, which consent shall not
be unreasonably withheld by the Owner.
(b) The Servicer shall not resign from the obligations and
duties hereby imposed on it except upon (i) the appointment of a successor
Servicer in the manner provided in Section 7.01, or (ii) the determination that
its duties hereunder are no longer permissible under applicable law and such
incapacity cannot be cured by the Servicer. Any such determination permitting
the resignation of the Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered to the Owner, which Opinion of Counsel shall be in form
and substance acceptable to the Owner.
(c) Without in any way limiting the generality of this Section
5.03, in the event that the Servicer either shall assign this Agreement or the
servicing responsibilities hereunder or delegate its duties hereunder or any
portion thereof (to other than a Subservicer) or sell or otherwise dispose of
all or substantially all of its property or assets, without the prior written
consent of the Owner, then the Owner shall have the right to terminate this
Agreement upon notice given as set forth in Section 6.01, without any payment of
any penalty or damages and without any liability whatsoever to the Servicer or
any third party.
(d) Except as provided in this Section 5.03 or Sections 4.02
or 6.01 hereof, the duties and obligations of the Servicer under this Agreement
shall continue until this Agreement shall have been terminated as provided in
Section 7.02 hereof, and shall survive the exercise by the Owner of any right or
remedy under this Agreement or the enforcement by the Owner of this Agreement.
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ARTICLE VI
DEFAULT
Section 6.01. Events of Default.
Any of the following acts or occurrences shall constitute an
Event of Default by the Servicer under this Agreement:
(i) The Servicer shall fail to distribute any
amounts required to be distributed to the Owner pursuant to Section
3.01 hereof, which failure continues unremedied for five days; or
(ii) The Servicer shall fail duly to observe or
perform in any material respects any covenants or agreements of this
Agreement, which failure continues for a period of 60 days after
written notice thereof shall have been given to the Servicer by the
Owner; or
(iii) The entry against the Servicer of a decree or
order of a court or agency or supervisory authority having jurisdiction
for the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, including bankruptcy, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, which decree or order shall have remained
in force undischarged or unstayed for a period of 60 days; or
(iv) The Servicer shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to the Servicer or relating to all or substantially all
of its property; or
(v) The Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency, bankruptcy or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or cease its
normal business operations for three Business Days.
If an Event of Default hereunder shall have occurred and be
continuing, the Owner may, by notice given to the Servicer, terminate all of the
rights and powers of the Servicer under this Agreement, including without
17
limitation all rights of the Servicer to receive the servicing compensation.
Upon the giving of such notice, all rights, powers, duties and responsibilities
of the Servicer under this agreement, whether with respect to the Mortgage
Notes, any servicing compensation or otherwise, shall vest in and be assumed by
a new Servicer as provided in Section 7.01, and the Owner is hereby authorized
and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, all documents and other instruments (including
any notices to Mortgagors deemed necessary or advisable by the Owner), and to do
or accomplish all other acts or things necessary or appropriate to effect such
vesting and assumption.
By a written notice, the Owner may waive any default by the
Servicer in the performance of its obligations hereunder and its consequences.
Upon any waiver of a past default, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 6.02. No Effect on Other Parties.
Upon any termination of the rights and powers of the Servicer
from time to time pursuant to Section 6.01 hereof or upon any appointment of a
successor to the Servicer, all the rights, powers, duties and obligations of the
Owner under this Agreement shall remain unaffected by such termination or
appointment and shall remain in full force and effect thereafter, except as
otherwise expressly provided in this Agreement.
Section 6.03. Rights Cumulative.
All rights and remedies from time to time conferred upon or
reserved to the Owner are cumulative, and none is intended to be exclusive of
another. No delay or omission in insisting upon the strict observance or
performance of any provision of this Agreement, or in exercising any right or
remedy, shall be construed as a waiver or relinquishment of such provision, nor
shall it impair such right or remedy. Every right and remedy may be exercised
from time to time and as often as deemed expedient.
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ARTICLE VII
MISCELLANEOUS
Section 7.01. Successor to the Servicer.
In the event that the Servicer's duties, responsibilities and
liabilities under this Agreement should be terminated pursuant to Sections 4.02,
5.03, 6.01 or 7.02, the Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and shall
take no action whatsoever that might impair or prejudice the rights or financial
condition of its successor. The resignation or removal of the Servicer pursuant
to the aforementioned sections shall not become effective until a successor
servicer shall be appointed by the Owner and such resignation or removal of the
Servicer shall not relieve the Servicer of the representations and warranties
made pursuant to Sections 4.01 and the remedies available to the Owner under
Section 4.02, it being understood and agreed that the provisions of such
Sections 4.01 and 4.02 shall be applicable to the Servicer notwithstanding any
such resignation or termination of the Servicer, or the termination of this
Agreement.
Within 30 days of the appointment of a successor entity by the
Owner, the Servicer shall prepare, execute and deliver to the successor entity
any and all documents and other instruments, place in such successor's
possession all Servicing Files and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of the notice of
termination described in Section 6.01 and to more fully and definitively vest in
the successor all such rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer. The Servicer shall cooperate with the Owner and
such successor in effecting the termination of the Servicer's responsibilities
and rights hereunder and the transfer of servicing responsibilities to the
successor servicer, including, without limitation, the transfer to such
successor for administration by it of all cash amounts received with respect to
the Mortgage Notes by the Servicer after it has received notice of termination.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Servicer and the Owner an instrument accepting
such appointment, wherein the successor shall make the representations and
warranties set forth in Section 4.01, whereupon such successor shall become
fully vested with all the rights, powers, duties, responsibilities, obligations
19
and liabilities of the Servicer, with like effect as if originally named as a
party to this Agreement. Any termination or resignation of the Servicer or
termination of this Agreement pursuant to Sections 4.02, 5.03, 6.01 or 7.02
shall not affect any claims that the Owner may have against the Servicer arising
out of the Servicer's actions or failure to act prior to any such termination or
resignation.
Upon a successor's acceptance of appointment as such, the
Servicer shall notify the Owner by mail of such appointment in accordance with
the procedures set forth in Section 7.04.
Section 7.02. Termination of Agreement.
This Agreement shall commence upon the date hereof and shall,
subject to earlier termination pursuant to the provisions of this Section 7.02,
terminate upon the maturity date of the last loan serviced hereunder. This
agreement may be canceled and terminated (i) at any time hereunder by the Owner
upon 60 days notice by to the Servicer, or (ii) otherwise by mutual agreement of
the parties hereto. In addition, this Agreement may be canceled and terminated
by the Owner, by notice to the Servicer, upon the occurrence of any Event of
Default as described in Section 6.01 hereof, such termination being a
"Termination for Cause."
Section 7.03. Amendment
(a) This Agreement may not be amended except pursuant to
a written instrument executed by the Owner and the Servicer.
Section 7.04. Governing Law.
This Agreement shall be construed in accordance with the laws
of the State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section 7.05. Notices
All demand notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed by overnight
courier, delivered in person or mailed by registered or certified United States
mail, postage prepaid, addressed as follows (or such address as may hereafter be
furnished to the other party by like notice):
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(a) If to the Owner:
Main Place Real Estate Investment Trust
000 Xxxxx Xxxxx Xxxxxx, 00xx Floor
NC1-007-23-02
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: President
(b) If to the Servicer:
NationsBank, N.A.
c/o NationsBank Corporation,
Legal Department
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx, Esq.
with a copy to:
NationsBanc Services, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
All notices and communications shall be deemed to
have been received either at the time of the personal delivery thereof to any
officer of the person entitled to receive such notices and communications at the
address of such person for notices hereunder, or on the third day after the
mailing thereof to such address, as the case may be.
Section 7.06. Severability of Provisions.
If one or more of the provisions of this Agreement shall be
for any reason whatever held invalid or unenforceable, such provisions shall be
deemed severable from the remaining covenants, agreements and provisions of this
Agreement and such invalidity of unenforceability shall in no way affect the
validity or enforceability of such remaining provisions or the rights of any
parties hereto. To the extent permitted by law, the parties hereto hereby waive
any provision of law which renders any provision of this Agreement invalid or
unenforceable in any respect.
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Section 7.07. Inspection and Audit Rights.
The Servicer agrees that, on reasonable prior notice, it will
permit any representative of the Owner, during the Servicer's normal business
hours, to examine all the books of account, records, reports and other papers of
the Servicer relating to the Mortgage Notes, to make copies and extracts
therefrom, to cause such books to be audited by Independent Accountants selected
by the Owner, and to discuss its affairs, finances and accounts relating to the
Mortgage Notes with officers, employees and Independent Accountants of the Owner
(and by this provision the Servicer hereby authorizes said accountants to
discuss with such representatives such affairs, finances and accounts), all at
such reasonable times and as often as may be reasonably requested. Any expense
incident to this Section 7.07 shall be borne by the Owner, provided that if an
audit is made during the continuance of an Event of Default, the expense
incident to such audit shall be borne by the Servicer.
Section 7.08. Binding Effect.
The provisions of this Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the parties
hereto.
Section 7.09. Article and Section Headings
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 7.10. Counterparts.
This Agreement may be executed in counterparts, each of which
shall be deemed an original for all purposes and all of which constitute,
collectively, one Agreement.
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IN WITNESS WHEREOF, the Owner and the Servicer have caused
this Agreement to be duly executed by their respective officers duly authorized
as of the day and year first above written.
MAIN PLACE REAL ESTATE
INVESTMENT TRUST
By: /s/ Xxxx X. Xxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
NATIONSBANK, N.A.
By: /s/ Xxxx X. Xxxxxxxx
------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
