EXHIBIT 99.2
EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of March, 2003, by and between Xxxxxxx Xxxxx Credit
Corporation (the "Seller"), and CENDANT MORTGAGE CORPORATION (the "Company"),
recites and provides as follows:
RECITALS
WHEREAS, the Seller has conveyed certain mortgage loans (the "Mortgage
Loans") identified on Exhibit B to Xxxxxxx Xxxxx Mortgage Investors, Inc. (the
"Depositor"), which in turn has conveyed the Mortgage Loans to Xxxxx Fargo Bank
Minnesota, National Association, as Trustee (the "Trustee"), pursuant to a trust
agreement dated as of March 1, 2003 (the "Trust Agreement").
WHEREAS, the Mortgage Loans are currently being serviced by the Company
for the Seller pursuant to the Portfolio Servicing Agreement between the Seller
and the Company as amended by Amendment Agreement No. 1 thereto (as amended, the
"Servicing Agreement"), attached as Exhibit C.
WHEREAS, the Seller desires that the Company continue to service the
Mortgage Loans, and the Company has agreed to do so.
WHEREAS, the Seller and the Company agree that the provisions of the
Servicing Agreement, as amended hereby with respect to the Mortgage Loans, shall
continue to apply to the Mortgage Loans, and shall govern the Mortgage Loans for
so long as such Mortgage Loans remain subject to the provisions of the Trust
Agreement.
WHEREAS, the Seller and the Company intend that the Depositor and the
Trustee are each intended third party beneficiaries of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Seller and the Company hereby
agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this
Agreement, including Exhibit A hereto and any provisions of the Servicing
Agreement incorporated by reference herein (regardless of whether such terms are
defined in the Servicing Agreement), shall have the meanings ascribed to such
terms in the Trust Agreement.
2. Servicing. The Company agrees, with respect to the Mortgage
Loans, to perform and observe the duties, responsibilities and obligations that
are to be performed and observed under the provisions of the Servicing
Agreement, except as otherwise provided herein and on Exhibit A hereto, and that
the provisions of the Servicing Agreement, as so modified, are and shall be a
part of this Agreement to the same extent as if set forth herein in full.
3. Termination of Company. The Trustee shall have the same rights
as the Seller to enforce the obligations of the Company under the Servicing
Agreement and the term "Owner" as used in the Servicing Agreement in connection
with any rights of the Owner shall refer to the Trust Fund or, as the context
requires, the Trustee acting in its capacity as agent for the Trust Fund, except
as otherwise specified in Exhibit A hereto. The Trustee shall be entitled to
terminate the rights and obligations of the
Company under this Agreement upon the failure of the Company to perform any of
its obligations under this Agreement, which failure results in an Event of
Default as provided in the Servicing Agreement. Notwithstanding anything herein
to the contrary, in no event shall the Trustee assume any of the obligations of
the Seller under the Servicing Agreement except as provided in this Agreement or
the Trust Agreement; and in connection with the performance of the Trustee's
duties hereunder, the parties and other signatories hereto agree that the
Trustee shall be entitled to all of the rights, protections and limitations of
liability afforded to the Trustee under the Trust Agreement.
4. Compliance with HOEPA. The Company is currently in compliance
with the Home Ownership and Equity Protection Act ("HOEPA") and will continue to
operate its business in compliance with HOEPA.
5. No Representations. Neither the Company nor the Trustee shall
be obligated or required to make any representations and warranties regarding
the characteristics of the Mortgage Loans (other than those company
representations and warranties of the Company made in the Servicing Agreement
which are hereby restated as of the Closing Date) in connection with the
transactions contemplated by the Trust Agreement and issuance of the
Certificates issued pursuant thereto.
6. Notices. All notices and communications between or among the
parties hereto (including any third party beneficiary thereof) or required to be
provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
All notices required to be delivered to the Trustee under this
Agreement shall also be delivered to the Trustee, with a copy to the Depositor,
at the following address:
Xxxxx Fargo Bank Minnesota, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Mortgage Investors Trust Series
MLCC 2003-B
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All notices required to be delivered to the Seller hereunder
shall be delivered to the Seller at the following address:
Xxxxxxx Xxxxx Credit Corporation
0000 Xxxx Xxxx Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxx Mortgage Investors Trust Series
MLCC 2003-B
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to the Depositor
hereunder shall be delivered to the Depositor at the following address:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
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000 Xxxxx Xxxxxx
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxxxx Xxxxx Mortgage Investors Trust Series
MLCC 2003-B
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to the Company hereunder
shall be delivered to the Company at the following address:
Cendant Mortgage Corporation
0000 Xxxxxxxxxx Xxxx
Xx. Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Chief Operating Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING
NEW YORK OR OTHER CHOICE OF LAW RULES TO THE CONTRARY.
8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
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Executed as of the day and year first above written.
XXXXXXX XXXXX CREDIT CORPORATION,
as Seller
By:____________________________________
Name: Xxxxx Xxxxxx
Title: Vice President
CENDANT MORTGAGE CORPORATION,
as Company
By:____________________________________
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
ACKNOWLEDGED BY:
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor
By:___________________________________
Name: Xxxxxxx Xxxxxx
Title: President
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:___________________________________
Name: Xxxxxx Xxxxxxxxxx
Title: Assistant Vice President
Cendant Reconstituted Servicing Agreement
EXHIBIT A
Modifications to the Servicing Agreement
1. Unless otherwise specified herein, for purposes of this Agreement, any
provisions of the Servicing Agreement, including definitions, relating
to (i) representations and warranties of the Owner and (ii) the sale
and purchase of the Mortgage Loans shall be disregarded.
2. For reporting purposes, a Mortgage Loan is "delinquent" when any
payment contractually due thereon has not been made by the close of
business on the Due Date therefor. Such Mortgage Loan is "30 days
Delinquent" if such payment has not been received by the close of
business on the corresponding day of the month immediately succeeding
the month in which such payment was first due, or, if there is no such
corresponding day (e.g., as when a 30-day month follows a 31-day month
in which a payment was due on the 31st day of such month), then on the
last day of such immediately succeeding month. Similarly for "60 days
Delinquent" and the second immediately succeeding month and "90 days
Delinquent" and the third immediately succeeding month.
3. A new definition of "Adverse REMIC Event" is hereby added to Article I
to read as follows:
Adverse REMIC Event: shall have the meaning set forth in
Section 10.01(f) of the Trust Agreement.
4. The definition of "Custodial Funds Account" is hereby amended to
entitle such account as "Xxxxx Fargo Bank Minnesota, National
Association, in trust for the registered holders of Xxxxxxx Xxxxx
Mortgage Investors Trust Series MLCC 2003-B Certificates." The
following sentence is added to the end of such definition: "The
Custodial Funds Account shall be an Eligible Account."
5. A new definition of "Custodial Agreement" is hereby added to Article I
to read as follows:
Custodial Agreement shall have the meaning set forth in the
Trust Agreement.
6. A new definition of "Custodian" is hereby added to Article I to read as
follows:
Custodian means Xxxxx Fargo Bank Minnesota, National
Association, any successor in interest or any successor
custodian appointed pursuant to the Custodial Agreement.
7. The definitions "Due Period" and "Eligible Account" are hereby added to
Article I and each shall have the meaning set forth in the Trust
Agreement.
8. The definition of "Escrow Account" in Article I is hereby amended to
entitle such an account as "Xxxxx Fargo Bank Minnesota, National
Association in trust for the registered holders of Xxxxxxx Xxxxx
Mortgage Investors Trust Series MLCC 2003-B Certificates." The
following sentence is hereby added to the end of such definition: "The
Escrow Account shall be an Eligible Account."
9. The definition of "Mortgage Loan Schedule" in Article I is hereby
amended in its entirety to read as follows:
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Mortgage Loan Schedule: The schedule of Mortgage Loans setting
forth certain information with respect to the Mortgage Loans,
which Mortgage Loan Schedule is attached as Exhibit B to this
Agreement.
10. A new definition of "Opinion of Counsel" is hereby added to Article I
to read as follows:
Opinion of Counsel A written opinion of counsel, who may be an
employee of the Company, that is reasonably acceptable to the
Trustee and the Depositor provided that any Opinion of Counsel
relating to (a) qualification of the Mortgage Loans in a REMIC
or (b) compliance with the REMIC Provisions, must be an
opinion of counsel reasonably acceptable to the Trustee and
the Depositor, who (i) is in fact independent of the Seller,
the Company and the Depositor of the Mortgage Loans, (ii) does
not have any material direct or indirect financial interest in
the Company or the Depositor of the Mortgage Loans or in an
affiliate of any such entity and (iii) is not connected with
the Seller, the Company or the Depositor of the Mortgage Loans
as an officer, employee, director or person performing similar
functions.
11. A new definition of "REMIC Provisions" is hereby added to Article I to
read as follows:
REMIC Provisions: The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which
appear at sections 860A through 860G of Subchapter M of
Chapter 1 of the Code, and related provisions, and
regulations, including proposed regulations and rulings, and
administrative pronouncements promulgated thereunder, as the
foregoing may be in effect from time to time.
12. The definition of "REO Property" in Article I is hereby amended by
replacing the word "Owner" with "Trustee on behalf of the Trust Fund".
14. Section 2.01(d) is hereby amended by replacing the word "Owner's" with
"Depositor's" and by deleting the second and third sentence.
15. Section 2.01(e) is hereby amended by replacing the word "Owner" with
"Trustee and/or the Depositor."
16. Section 2.01(f) is hereby amended by replacing the word "Owner" with
"Seller."
17. Section 2.01(i) is hereby amended by replacing "Owner" with "Custodian"
in the first sentence.
18. Section 2.01 (l) is hereby deleted.
19. Section 2.01(m) is hereby added to read as follows:
(m) the Company shall not, unless default by the related
Mortgagor has occurred or is, in the reasonable judgment of
the Company, imminent, knowingly permit any modification,
waiver or amendment of any material term of any Mortgage Loan
(including but not limited to the interest rate, the principal
balance, the amortization schedule, or any other term
affecting the amount or timing of payments on the Mortgage
Loan or the collateral therefor) unless the Company shall have
provided to the Depositor and the Trustee an Opinion of
Counsel in writing to the effect that such modification,
waiver or amendment would not cause an Adverse REMIC Event.
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20. Section 2.02(a) is amended by adding the following:
In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage
Loan, the Company shall dispose of such REO Property not later
than the end of the third taxable year after the year of its
acquisition by the Trust Fund unless the Company has applied
for and received a grant of extension from the Internal
Revenue Service to the effect that, under the REMIC Provisions
and any relevant proposed legislation and under applicable
state law, the Trust Fund may hold REO Property for a longer
period without adversely affecting the REMIC status of such
REMIC or causing the imposition of a federal or state tax upon
such REMIC. If the Company has received such an extension,
then the Company shall continue to attempt to sell the REO
Property for its fair market value for such period longer than
three years as such extension permits (the "Extended Period").
If the Company has not received such an extension and the
Company is unable to sell the REO Property within the period
ending 3 months before the end of such third taxable year
after its acquisition by the Trust Fund or if the Company has
received such an extension, and the Company is unable to sell
the REO Property within the period ending three months before
the close of the Extended Period, the Company shall, before
the end of the three year period or the Extended Period, as
applicable, (i) purchase such REO Property at a price equal to
the REO Property's fair market value or (ii) auction the REO
Property to the highest bidder (which may be the Company) in
an auction reasonably designed to produce a fair price prior
to the expiration of the three-year period or the Extended
Period, as the case may be. The Trustee shall sign any
document prepared by the Company or take any other action
reasonably requested by the Company which would enable the
Company, on behalf of the Trust Fund, to request such grant of
extension.
Notwithstanding any other provisions of this Agreement, no REO
Property acquired by the Trust Fund shall be rented (or
allowed to continue to be rented) or otherwise used by or on
behalf of the Trust Fund in such a manner or pursuant to any
terms that would: (i) cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code; or (ii) subject the Trust Fund
to the imposition of any federal income taxes on the income
earned from such REO Property, including any taxes imposed by
reason of Sections 860F or 860G(c) of the Code, unless the
Company has agreed to indemnify and hold harmless the Trust
Fund with respect to the imposition of any such taxes."
21. Section 2.03 is hereby deleted.
22. Section 2.04 is hereby amended by replacing the word "Owner" with
"Depositor and/or Trustee."
23. Section 2.05(a) is hereby amended by deleting the second sentence
thereof.
24. Section 2.08 is hereby replaced with the following:
Company Not to Resign. The Company shall neither
assign this Agreement or the servicing hereunder or delegate
its rights or duties hereunder or any portion hereof (to other
than a third party in the case of outsourcing routine tasks
such as taxes, insurance and property inspection, in which
case the Company shall be fully liable for such tasks as if
the Company performed them itself) nor sell or otherwise
dispose of all or substantially all of its property or assets
without the prior written consent of the Trustee and the
Depositor, which consent shall be granted or withheld in the
reasonable discretion of such
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parties, provided, however, that (i) the Company may assign
its rights and obligations hereunder without prior written
consent of the Trustee and the Depositor to any entity that is
directly owned or controlled by the Company, and the Company
guarantees the performance of such entity hereunder (ii) the
Company is no longer permitted to act as Company under
applicable law as evidenced by an opinion of counsel or (iii)
upon a sale of its servicing rights with respect to the
Mortgage Loans with the prior written consent of the Seller.
In the case of item (i) above, the Company shall provide the
Trustee and the Depositor with a written statement
guaranteeing the successor entity's performance of the
Company's obligations under the Agreement.
25. Section 2.11 is hereby amended by deleting the third sentence and
replacing the word "Owner" with "Seller" in the last sentence.
26. Section 2.12 is hereby deleted.
27. Section 4.16 is hereby added:
Compliance With Representations and Warranties. Within 60 days
of the earlier of either discovery by or notice to the Company
of any breach of a representation or warranty set forth in
this Article IV which materially and adversely affects the
ability of the Company to perform its duties and obligations
under this Agreement or otherwise materially and adversely
affects the value of the Mortgage Loans, the Mortgaged
Property or the priority of the security interest on such
Mortgaged Property, the Company shall use its best efforts
promptly to cure such breach in all material respects and, if
such breach cannot be cured, the Company shall, at the
Trustee's option, assign the Company's rights and obligations
under this Agreement (or respecting the affected Mortgage
Loans) to a successor Company selected by the Depositor with
the prior consent and approval of the Trustee. Such assignment
shall be made in accordance with Section 13.01.
28. Section 5.02 is hereby deleted.
29. Section 6.01 is hereby deleted.
30. Section 6.02 is hereby amended to read as follows:
(1) On each Portfolio Remittance Date prior to 1:00
p.m. New York City time, the Company shall remit to the
Trustee (a) all amounts credited to the Custodial Funds
Account as of the close of business on the last day of the
related Due Period (including (1) the amount of any Principal
Prepayment, together with interest thereon at the related Net
Mortgage Rate to the end of the month in which prepayment of
the related Mortgage Loan occurs, provided that such interest
may not be greater that the servicing compensation payable to
the Company in the applicable month, and (2) all proceeds of
any REO Disposition net of amounts payable to the Company),
net of charges against or withdrawals from the Custodial Funds
Account in accordance with Article VII, which charges against
or withdrawals from the Custodial Funds Account the Company
shall make solely on such Portfolio Remittance Date, plus (b)
all Monthly Advances, if any, which the Company is obligated
to remit; provided that the Company shall not be required to
remit, until the next following Portfolio Remittance Date, any
amounts attributable to Monthly Payments collected but due on
a Due Date or Dates subsequent to the related Due Period.
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(2) All remittances required to be made to the
Trustee shall be made to the following wire account or to such
other account as may be specified by the Trustee from time to
time:
Xxxxx Fargo Bank, National Association
San Francisco, California
ABA#: 121 000 248
Account Name: FAS Clearing
Account No.: 0000000000
For further credit to: 18094800, MLCC 2003-B
31. Section 6.03(a) is hereby amended by adding the following new sentence
to such section:
In lieu of making all or a portion of such Monthly
Advance from its own funds, the Company may cause to be made
an appropriate entry in its records relating to the Custodial
Funds Account that any amount held in the Custodial Funds
Account on account of Monthly Payments or portions thereof
received in respect of the Mortgage Loans due after the
related Due Date has been used by the Company in discharge of
its obligation to make any such Monthly Advance and transfer
such funds from the Custodial Funds Account to the Trustee.
Any such Monthly Payments so used to make Monthly Advances
shall be replaced by the Company by deposit in the Custodial
Funds Account on or before any future Portfolio Remittance
Date if funds in the Custodial Funds Account on such Portfolio
Remittance Date shall be less than payments to the Trust Fund
required to be made on such Portfolio Remittance Date.
32. Section 6.04 is hereby amended by replacing the word "Owner" with
"Trustee" except in the proviso of the last sentence and by replacing
the first paragraph of such section with the following:
Not later than the 15th calendar day of each month
(or if such calendar day is not a Business Day, the
immediately succeeding Business Day), the Company shall
furnish to the Trustee (i) a monthly remittance advice in the
format set forth in Exhibit D-1 hereto and a monthly defaulted
loan report in the format set forth in Exhibit D-2 hereto
relating to the period ending on the first day of the current
calendar month and (ii) all such information required pursuant
to clause (i) above on a magnetic tape or other similar media
mutually agreed upon by the Trustee and the Company.
33. Section 7.01 is amended by revising the Servicing Fee with respect to
each Mortgage to mean 0.25% per annum.
34. Sections 7.02, 7.03 and 9.01 are hereby deleted.
35. The parties hereto acknowledge that the remedies set forth in Section
10.01 may be exercised by either the Depositor or the Trustee on behalf
of the Trust Fund.
36. Section 10.01 is hereby modified to delete paragraph (ix) and the
second paragraph of such section.
37. Section 10.02 is hereby deleted.
38. A new Section 11.03 (Officer's Certificate) is hereby added to read as
follows:
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Officer's Certificate. By February 28th of each year,
or at any other time upon thirty (30) days written request, an
officer of the Company shall execute and deliver an Officer's
Certificate substantially in the form of Exhibit F attached
hereto, signed by the senior officer in charge of servicing of
the Company or any officer to whom that officer reports, to
the Trustee and Depositor for the benefit of such parties and
their respective officers, directors and affiliates.
39. Section 12.01 is hereby deleted.
40. Section 12.02 is amended by replacing all references to "Owner" to
"Trustee, Trust Fund and Depositor."
41. Section 13.01 is hereby amended in its entirety to read as follows:
Simultaneously with the termination of the Company's
responsibilities and duties under this Agreement (a) the
Trustee shall, in accordance with the provisions of the Trust
Agreement (i) succeed to and assume all of the Company's
responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor meeting the eligibility
requirements of the Trust Agreement and which shall succeed to
all rights and assume all of the responsibilities, duties and
liabilities of the Company under this Agreement with the
termination of the Company's responsibilities, duties and
liabilities under this Agreement. If the Trustee shall succeed
to and assume the Company's responsibilities, rights, duties
and obligations under this Agreement, such succession shall
not be effective prior to 90 days after the Trustee's
knowledge that the Company shall be terminated hereunder. The
Company shall not be removed hereunder prior to the
effectiveness of the assumption of its responsibilities,
rights, duties and obligations by the successor thereto. Any
successor to the Company that is not at that time a Company of
other Mortgage Loans for the Trust Fund shall be subject to
the approval of the Depositor, the Trustee and each Rating
Agency (as such term is defined in the Trust Agreement).
Unless the successor servicer is at that time a servicer of
other mortgage loans for the Trust Fund, each Rating Agency
must deliver to the Trustee a letter to the effect that such
transfer of servicing will not result in a qualification,
withdrawal or downgrade of the then-current rating of any of
the Certificates. In connection with such appointment and
assumption, the Trustee or the Depositor, as applicable, may
make such arrangements for the compensation of such successor
out of payments on the Mortgage Loans as it and such successor
shall agree; provided, however, that no such compensation
shall be in excess of that permitted the Company under this
Agreement. In the event that the Company's duties,
responsibilities and liabilities under this Agreement should
be terminated pursuant to the aforementioned sections, the
Company 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 Company pursuant to the aforementioned sections
shall not become effective until a successor shall be
appointed pursuant to this Section 12.01 and shall in no event
relieve the Company of the representations and warranties made
pursuant to Article IV and the remedies available to the
Trustee under Article VIII, it being understood and agreed
that the provisions of Article XII, Setion 8.01, 10.02, 15.02,
15.04 and 15.16. shall be applicable to the Company
notwithstanding any such resignation or termination of the
Company, or the termination of this Agreement.
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Within a reasonable period of time, but in no event
longer than 30 days of the appointment of a successor entity,
the Company 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 such notice of
termination. The Company shall cooperate with the Trustee and
the Depositor, as applicable, and such successor in effecting
the termination of the Company's responsibilities and rights
hereunder and the transfer of servicing responsibilities to
the successor Company, including without limitation, the
transfer to such successor for administration by it of all
cash amounts which shall at the time be credited by the
Company to the Custodial Account or any Escrow Account or
thereafter received with respect to the Mortgage Loans.
Any successor appointed as provided herein shall
execute, acknowledge and deliver to the Trustee, the Company
and the Depositor an instrument (i) accepting such
appointment, wherein the successor shall make the
representations and warranties set forth in Article IV and
(ii) an assumption of the due and punctual performance and
observance of each covenant and condition to be performed and
observed by the Company under this Agreement, whereupon such
successor shall become fully vested with all the rights,
powers, duties, responsibilities, obligations and liabilities
of the Company, with like effect as if originally named as a
party to this Agreement. Any termination or resignation of the
Company or termination of this Agreement pursuant to Section
12.01 shall not affect any claims that the Depositor or the
Trustee may have against the Company arising out of the
Company's actions or failure to act prior to any such
termination or resignation.
The Company shall deliver within ten (10) Business
Days to the successor Company the funds in the Custodial
Account and Escrow Account and all Mortgage Loan Documents and
related documents and statements held by it hereunder and the
Company shall account for all funds and shall execute and
deliver such instruments and do such other things as may
reasonably be required to more fully and definitively vest in
the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Company.
Upon a successor's acceptance of appointment as such,
the Company shall notify the Trustee and Depositor of such
appointment in accordance with the notice procedures set forth
herein.
42. A new Section 13.02 is hereby added to read as follows:
Intended Third Party Beneficiaries. Notwithstanding any
provision herein to the contrary, the parties to this
Agreement agree that it is appropriate, in furtherance of the
intent of such parties as set forth herein, that the Depositor
and the Trustee receive the benefit of the provisions of this
Agreement as intended third party beneficiaries of this
Agreement to the extent of such provisions. The Company shall
have the same obligations to the Depositor and the Trustee as
if they were parties to this Agreement, and the Depositor and
the Trustee shall have the same rights and remedies to enforce
the provisions of this Agreement as if they were parties to
this Agreement. The Company shall only take direction from the
Depositor (if direction by the Depositor is required under
this Agreement) unless otherwise directed by this Agreement.
Notwithstanding the foregoing, all rights and obligations of
the Depositor and the Trustee hereunder (other
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than the right to indemnification) shall terminate upon
termination of the Trust Agreement and of the Trust Fund
pursuant to the Trust Agreement.
43. A new Section 13.03 is hereby added to read as follows:
Request for Release. When requesting a release of documents
from the Custodian, the Company shall use the form attached
hereto as Exhibit E.
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EXHIBIT B
Mortgage Loan Schedule
[INTENTIONALLY OMITTED]
B-1
EXHIBIT C
Servicing Agreement
See Exhibit 99.3 and Exhibit 99.4, filed herewith
C-1
EXHIBIT D-1
STANDARD LAYOUT FOR MONTHLY REMITTANCE ADVICE
DETAIL RECORD
The detail record for external output files #0312 - #1252 (noninclusive) is as
follows:
POSITION FIELD NAME PICTURE DESCRIPTION
0001-0001 REC ID X(01) This field equals D.
0002-0013 LOAN NUMBER X(12) This field equals the LOAN-NO from
report S-50Y. The number is right-
justified and left blank-filled.
0014-0014 LOAN NUMBER X(01) This field equals the check
CHK DGT digit associated with the ALLTEL
loan number. Spaces are moved to
this field if no check digit
exists for the loan.
0015-0019 INTEREST 99V9(03) This field equals the interest
RATE rate note (rate) that applies to
the scheduled payment that is
included on this tape.
0020-0024 PENDING RATE 99V9(03) This field equals the interest
that applies to the loan the next
time the interest rate is changed
for the loan. This is equal to
INTEREST RATE (above) if the new
interest rate has not been
determined.
0025-0036 SCHED P&I 9(10)V99 This field equals the scheduled
PMT principal and interest payment on
report S-50Y for the cutoff being
processed.
0037-0037 FILLER X(01) This field equals spaces.
0038-0048 SCHEDULED S9(09) This field equals the SCHED PRIN
PRINCIPAL V99 on report S-50Y.
0049-0060 GROSS 9(10)V99 This field
D-1-1
INTEREST equals the (Beginning Scheduled
Principal Balance * Note Rate) /
12. The fields used to make this
calculation are sent from report
S-50Y for processing the cutoff.
0061-0072 CURTAILMENT S9(10)V99 This field equals CURTAILMENT from
COLL report S-50Y for processing the
cutoff.
0073-0084 CURTAILMENT S9(10)V99 This field equals the field labeled
ADJ ADJ following the CURTAILMENT field
on report S-50Y for processing the
cutoff.
0085-0096 PIF 9(10)V99 This field equals the beginning
PRINCIPAL scheduled principal balance on
report S-50Y for the loan if the
loan has been paid in full.
0097-0108 PIF INTEREST 9(10)V99 This field is the difference
between the scheduled net interest
and the interest collections for
the loan on report S-50Y for
processing the cutoff.
0109-0113 ARM INDEX 99V9(03) This field is equal to the ARM
INDEX that applies to the
scheduled net interest payment.
0114-0118 PEND INDEX 99V9(03) This field is equal to the ARM
INDEX for the interest rate
associated with the interest rate
that is effective the next time
the interest rate changes. This
field is equal to the ARM INDEX
above if the interest rate
D-1-2
above has not been determined.
0119-0130 ENDING SCHED 9(10)V99 This field is equal to the ENDING
BAL SCH BALANCE on report S-50Y for
processing the cutoff.
0131-0140 INVESTOR X(10) This field is equal to INV LOAN NO
LOAN NUM from report S-50Y for processing
the cutoff.
0141-0145 SERVICE FEE S99 This field is equal to the S-FEE
RATE V9(03) from report S-50Y for processing
the cutoff.
0146-0151 DUE DATE 9(06) This field is equal to the DUE DT
from report S-50Y for processing
the cutoff. The date is in the
format YYMMDD.
0152-0156 YIELD RATE S99 This field is equal to the YIELD
V9(03) from report S-50Y for processing
the cutoff.
0157-0169 BEGINNING S9(11) This field is equal to the BEGIN
BALANCE V99 PRIN BAL from report S-50Y for
processing the cutoff.
0170-0182 ENDING S9(11) This field is equal to the END
BALANCE V99 PRIN BAL from report S-50Y for
processing the cutoff.
0183-0195 BEGINNING S9(11) This field is equal to the BEG
SCHED BAL V99 SCHED PRIN BAL from report S-50Y
for processing the cutoff.
0196-0207 PRINCIPAL S9(10) This field is equal to the PRIN
COLLECTED V99 COLL from report S-50Y for
processing the cutoff.
0208-0219 SCHEDULED S9(10) This field is equal to the SCH NET
NET INT V99 INT from report S-50Y for
processing the cutoff.
D-1-3
0220-0231 SCHEDULED S9(10) This field is equal to the BUYDOWN
BUYDOWN V99 from report S-50Y for processing
the cutoff.
0232-0243 SERVICE FEE S9(10) This field is equal to the SER-FEE
COLL V99 COLL from report S-50Y for
processing the cutoff.
0244-0255 REMITTANCE S9(10) This field equals the REMITTANCE
AMOUNT V99 from report S-50Y for processing
the cutoff.
D-1-4
HEADER RECORD
The header record for external output files #0312 - #1252 (noninclusive) is as
follows:
POSITION FIELD NAME PICTURE DESCRIPTION
0001-0001 REC-ID X(01) This field equals H.
0002-0009 FILLER X(08) This field equals spaces.
0010-0015 TAPE-DATE 9(6) This field equals the date the
tape was created. Type the field
in the format YYMMDD.
0016-0255 FILLER X(240) This field equals spaces.
D-1-5
TRAILER RECORD
The trailer record for external output files #0312 - #1252 (noninclusive) is as
follows:
POSITION FIELD NAME PICTURE DESCRIPTION
0001-0001 REC ID X(01) This field equals T.
0002-0011 LOAN COUNT 9(10) This field equals the total number
of loans reported on the tape.
0012-0255 FILLER X(244) This field equals spaces.
X-0-0
XXXXXXX X-0
XXXXXXXX XXXXXX FOR MONTHLY DEFAULTED LOAN REPORT
------------------------------------------------------------------------------------------------------------------------------------
OUR LOAN INVESTOR INVESTOR MORTGAGOR DUE PAYT PRINCIPAL PRIN-INT LOAN
NO. BK. CAT TP LOAN NO NAME DATE NO. BALANCE CONSTANT --DELINQUENCIES-- DESC
------------------------------------------------------------------------------------------------------------------------------------
PRINCIPAL INTEREST
------------------------------------------------------------------------------------------------------------------------------------
D-2-1
EXHIBIT E
REQUEST FOR RELEASE
To: Xxxxx Fargo Bank Minnesota,
National Association
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
(Attention: Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2003-B)
Re: Trust Agreement, dated as of March 1, 2003 by and
between Xxxxxxx Xxxxx Mortgage Investors, Inc. and
Xxxxx Fargo Bank Minnesota, National Association, as
Trustee
In connection with the administration of the pool of Mortgage Loans
held by you as Trustee for the benefit of Certificateholders, we request the
release of the (Trustee's Mortgage File/[specify documents]) for the Mortgage
Loan described below, for the reason indicated.
File/document to be sent to:
[Company]
[Address]
[Attn:]
[Telephone Number ____]
Mortgagor's Name, Address & Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
________ 1. Mortgage Loan Paid in Full
([Seller/Depositor] [Servicer], hereby certifies that all
amounts received in connection therewith have been credited to
the Custodial Account or the Distribution Account, as
applicable.)
________ 2. Mortgage Loan in Foreclosure
________ 3. Mortgage Loan Repurchased or Substituted For
([Seller/Depositor] [Servicer], hereby certifies that any
applicable repurchase price or substitution shortfall amount
has been credited to the Custodial Account or the Distribution
Account, as applicable.)
________ 4. Mortgage Loan Liquidated
([Seller/Depositor] [Servicer], hereby certifies that all
proceeds of foreclosure, insurance or other liquidation have
been finally received and credited to the Custodial Account or
the Distribution Account, as applicable.)
________ 5. Other (explain)_______________________________________
E-1
If box 1, 2 or 3 above is checked, and if all or part of the Trustee's
Mortgage File was previously released to us, please release to us our previous
receipt on file with you, as well as any additional documents in your possession
relating to the above specified Mortgage Loan.
If box 4 or 5 above is checked, upon our return of all of the above
documents to you as Trustee, please acknowledge your receipt by signing in the
space indicated below, and returning this form.
[SELLER/DEPOSITOR]
[SERVICER]
By:_______________________________
Date:______________________________
Documents returned to Trustee:
___________________________,
as Trustee
By:________________________
Date:______________________
E-2
EXHIBIT F
SEC CERTIFICATION
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: Xxxxxxx Xxxxx Mortgage Investors Trust
Series MLCC 2003-B
Reference is made to the Reconstituted Servicing Agreement, dated as of March 1,
2003 (the "Agreement"), by and between Xxxxxxx Xxxxx Credit Corporation, as
Seller and Cendant Mortgage Corporation, as servicer (the "Company"). I,
[identify the certifying individual], a [title] of the Company hereby certify to
Xxxxx Fargo Bank Minnesota, N.A. (the "Trustee") and Xxxxxxx Xxxxx Mortgage
Investors, Inc. (the "Depositor"), and their respective officers, directors and
affiliates, that:
1. I have reviewed the information required to be delivered to the Trustee
pursuant to the Agreement (the "Servicing Information").
2. Based on my knowledge, the information in the Annual Statement of
Compliance, and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans submitted to
the Trustee by the Company 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 light of the circumstances under which such
statements were made, not misleading as of the last day of the period
covered by the Annual Statement of Compliance;
3. Based on my knowledge, the Servicing Information required to be provided to
the Trustee by the Company under the Agreement has been provided to the
Trustee;
4. I am responsible for reviewing the activities performed by the Company
under the Agreement and based upon the review required under the Agreement,
and except as disclosed in the Annual Statement of Compliance, the Annual
Independent Certified Public Accountant's Servicing Report and all
servicing reports, officer's certificates and other information relating to
the servicing of the Mortgage Loans submitted to the Trustee by the
Company, the Company has, as of the last day of the period covered by the
Annual Statement of Compliance fulfilled its obligations under the
Agreement; and
F-1
5. I have disclosed to the Trustee and the Depositor all significant
deficiencies relating to the Company's compliance with the minimum
servicing standards in accordance with a review conducted in compliance
with the Uniform Single Attestation Program for Mortgage Bankers as set
forth in the Agreement.
Name: ____________________________
Title: ____________________________
Date: ____________________________
F-2
