Exhibit 99.2
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is an Assignment, Assumption and Recognition Agreement (this "AAR
Agreement") made as of November 15, 2005, among Xxxxxxx Xxxxx Mortgage Lending,
Inc., having an address at World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Assignor"), Xxxxxxx Xxxxx Mortgage Investors, Inc., having an
address at 4 World Financial Center, 10th Floor, New York, New York 10281 (the
"Assignee") and GreenPoint Mortgage Funding, Inc. (the "Company").
WHEREAS, Xxxxxxx Xxxxx Mortgage Holdings Inc. ("MLMH") acquired the
mortgage loans set forth on Attachment 1 annexed hereto (the "Assigned Loans")
from the Company pursuant to that certain Master Mortgage Loan Purchase and
Servicing Agreement (the "Agreement"), dated as of April 1, 2003, among MLMH,
Terwin Advisors, LLC ("Terwin") and the Company, as amended by Amendment No. 1,
dated as of August 20, 2003 among MLMH, Terwin and the Company;
WHEREAS, MLMH assigned all of its right, title and interest in, to and
under Assigned Loans and the Agreement to Assignor pursuant to the Assignment,
Assumption and Recognition Agreement, dated November 15, 2005, among MLMH, the
Company and Assignor (the "Assignment, Assumption and Recognition Agreement";
together with the Agreement, the "Agreements").
In consideration of the mutual promises contained herein the parties
hereto agree that the Assigned Loans shall be subject to the terms of this AAR
Agreement. Capitalized terms used herein but not defined shall have the meanings
ascribed to them in the Pooling and Servicing Agreement (as defined below).
Assignment and Assumption
1. Assignor hereby grants, sells, transfers and assigns to Assignee all of
the right, title and interest of Assignor in the Assigned Loans and, as they
relate to the Assigned Loans, all of its right, title and interest in, to and
under the Agreements. Assignor specifically reserves and does not assign to
Assignee any right, title and interest in, to or under any Mortgage Loans
subject to the Agreements other than those set forth on Attachment l.
Notwithstanding anything to the contrary contained herein, the Assignor
specifically reserves and does not assign to the Assignee any right, title and
interest in, to or under the representations and warranties contained in Section
7.01 and Section 7.02 of the Agreement and the Assignor is retaining the right
to enforce the representations and warranties set forth in those sections
against the Company. In addition, the Assignor specifically reserves and does
not assign to the Assignee any right, title and interest in, to or under Section
7.04 of the Agreement.
Representations, Warranties and Covenants
2. Assignor warrants and represents to, and covenants with, Assignee and
Company that as of the date hereof:
a. Attached hereto as Attachment 2 are true and accurate copies of
the Agreements, which agreements are in full force and effect as
of the date
hereof and the respective provisions of which have not been
waived, amended or modified in any respect, nor has any notice of
termination been given thereunder;
b. Assignor was the lawful owner of the Assigned Loans with full
right to transfer the Assigned Loans and any and all of its
interests, rights and obligations under the Agreements as it
relates to the Assigned Loans, free and clear of any and all
liens, claims and encumbrances; and upon the transfer of the
Assigned Loans to Assignee as contemplated herein, Assignee shall
have good title to each and every Assigned Loan, as well as any
and all of Assignor's interests, rights and obligations under the
Agreements as it relates to the Assigned Loans, free and clear of
any and all liens, claims and encumbrances;
c. Assignor has not received notice of, and has no knowledge of, any
offsets, counterclaims or other defenses available to Company
with respect to the Assigned Loans or the Agreements;
d. Assignor has not waived or agreed to any waiver under, or agreed
to any amendment or other modifications of, the Agreements.
Assignor has no knowledge of, and has not received notice of, any
waivers under or any amendments or other modifications of, or
assignment of rights or obligations under the Agreements;
e. Assignor is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
formation, and has all requisite power and authority to acquire,
own and sell the Assigned Loans;
f. Assignor has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to
consummate the transactions set forth herein. The consummation of
the transactions contemplated by this AAR Agreement is in the
ordinary course of Assignor's business and will not conflict
with, or result in a breach of, any of the terms, conditions or
provisions of Assignor's charter or by-laws or any legal
restriction, or any material agreement or instrument to which
Assignor is now a party or by which it is bound, or result in the
violation of any law, rule, regulation, order, judgment or decree
to which Assignor or its property is subject. The execution,
delivery and performance by Assignor of this AAR Agreement and
the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary action on the part of
Assignor. This AAR Agreement has been duly executed and delivered
by Assignor and, upon the due authorization, execution and
delivery by Assignee and Company, will constitute the valid and
legally binding obligation of Assignor enforceable against
Assignor in accordance with its terms except as enforceability
may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights
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generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or
at law;
g. No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity
is required to be obtained or made by Assignor in connection with
the execution, delivery or performance by Assignor of this AAR
Agreement, or the consummation by it of the transactions
contemplated hereby. Neither Assignor nor anyone acting on its
behalf has offered, transferred, pledged, sold or otherwise
disposed of the Assigned Loans or any interest in the Assigned
Loans, or solicited any offer to buy or accept transfer, pledge
or other disposition of the Assigned Loans, or any interest in
the Assigned Loans, or otherwise approached or negotiated with
respect to the Assigned Loans, or any interest in the Assigned
Loans, with any Person in any manner, or made any general
solicitation by means of general advertising or in any other
manner, or taken any other action which would constitute a
distribution of the Assigned Loans under the Securities Act of
1933, as amended (the "1993 Act") or which would render the
disposition of the Assigned Loans a violation of Section 5 of the
1933 Act or require registration pursuant thereto; and
h. Assignor has received from Company, and has delivered to
Assignee, all documents required to be delivered to Assignor by
Company prior to the date hereof pursuant to Section 6.03 of the
Agreement with respect to the Assigned Loans.
3. Assignee warrants and represents to, and covenants with, Assignor and
Company that as of the date hereof:
a. Assignee is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its formation
and has all requisite power and authority to acquire, own and
purchase the Assigned Loans;
b. Assignee has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to
consummate the transactions set forth herein. The consummation of
the transactions contemplated by this AAR Agreement is in the
ordinary course of Assignee's business and will not conflict
with, or result in a breach of, any of the terms, conditions or
provisions of Assignee's charter or by-laws or any legal
restriction, or any material agreement or instrument to which
Assignee is now a party or by which it is bound, or result in the
violation of any law, rule, regulation, order, judgment or decree
to which Assignee or its property is subject. The execution,
delivery and performance by Assignee of this AAR Agreement and
the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary action on the part of
Assignee. This AAR Agreement has been
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duly executed and delivered by Assignee and, upon the due
authorization, execution and delivery by Assignor and Company,
will constitute the valid and legally binding obligation of
Assignee enforceable against Assignee in accordance with its
terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally,
and by general principles of equity regardless of whether
enforceability is considered in a proceeding in equity or at law;
c. No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity
is required to be obtained or made by Assignee in connection with
the execution, delivery or performance by Assignee of this AAR
Agreement, or the consummation by it of the transactions
contemplated hereby;
d. There is no action, suit, proceeding, investigation or litigation
pending or, to Assignee's knowledge, threatened, which either in
any instance or in the aggregate, if determined adversely to
Assignee, would adversely affect Assignee's execution or delivery
of, or the enforceability of, this AAR Agreement, or Assignee's
ability to perform its obligations under this AAR Agreement;
e. Assignee understands that the Assigned Loans have not been
registered under the Securities Act of 1934 (the "Securities
Act") or the securities laws of any state;
f. Assignee is either (i) not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or Section 4975 of the Internal Revenue
Code of 1986 (the "Code")(a "Plan") and not a Person acting,
directly or indirectly, on behalf of or investing with "plan
assets" of any such Plan or (ii) an employee benefit plan that is
subject to ERISA and the assignment contemplated herein does not
constitute and will not result in non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the
Code;
g. Assignee assumes all of the rights of the Assignor under the
Agreements with respect to the Assigned Loans including the right
to enforce the representations and warranties of the Company
contained in the Agreements; and
h. A registration statement on Form S-3 (File No. 333-127233),
including the Base Prospectus (the "Registration Statement") has
been filed with the Securities and Exchange Commission (the
"Commission") and has become effective under the Securities Act
of 1933, as amended (the "Securities Act") and no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that
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purpose have been initiated, or to the Assignee's knowledge,
threatened, by the Commission.
4. Company warrants and represents to, and covenants with, Assignor and
Assignee that as of the date hereof:
a. Attached hereto as Attachment 2 are true and accurate copies of
the Agreements, which agreements are in full force and effect as
of the date hereof and the respective provisions of which have
not been waived, amended or modified in any respect, nor has any
notice of termination been given thereunder;
b. Company is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has
all requisite power and authority to service the Assigned Loans;
c. Company has full corporate power and authority to execute,
deliver and perform its obligations under this AAR Agreement, and
to consummate the transactions set forth herein. The consummation
of the transactions contemplated by this AAR Agreement is in the
ordinary course of Company's business and will not conflict with,
or result in a breach of, any of the terms, conditions or
provisions of Company's charter or by-laws or any legal
restriction, or any material agreement or instrument to which
Company is now a party or by which it is bound, or result in the
violation of any law, rule, regulation, order, judgment or decree
to which Company or its property is subject. The execution,
delivery and performance by Company of this AAR Agreement and the
consummation by it of the transactions contemplated hereby, have
been duly authorized by all necessary corporate action on the
part of Company. This AAR Agreement has been duly executed and
delivered by Company, and, upon the due authorization, execution
and delivery by Assignor and Assignee, will constitute the valid
and legally binding obligation of Company, enforceable against
Company in accordance with its terms except as enforceability may
be limited by bankruptcy, reorganization, insolvency, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity
regardless of whether enforceability is considered in a
proceeding in equity or at law;
d. No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required
to be obtained or made by Company in connection with the
execution, delivery or performance by Company of this AAR
Agreement, or the consummation by it of the transactions
contemplated hereby;
e. Company shall establish a Custodial Account (entitled "GreenPoint
Mortgage Funding, Inc., as Servicer, in trust for Xxxxx Fargo
Bank, N.A. as Securities Administrator for Xxxxxxx Xxxxx Mortgage
Investors Trust
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MLMI Series 2005-A8 Mortgage Pass-Through Certificates") and an
Escrow Account (entitled "GreenPoint Mortgage Funding, Inc., as
Servicer, in trust for Xxxxx Fargo Bank, N.A., as Securities
Administrator for Xxxxxxx Xxxxx Mortgage Investors Trust MLMI
Series 2005-A8 Mortgage Pass-Through Certificates") with respect
to the Assigned Loans, which accounts shall be separate from the
Custodial Account and Escrow Account previously established under
the Agreement in favor of the Assignor; and
f. Each of the representations and warranties made by Company in
Section 7.01 and Section 7.02 of the Agreement are true and
correct in all material respects as of the date hereof provided,
however, that the representations made in Section 7.02(v) are
made as of the date of the Agreement.
Recognition of Assignee
5. From and after the date hereof, Company shall recognize Assignee as
owner of the Assigned Loans and will service the Assigned Loans for Assignee in
accordance with the Agreement (as modified herein), the terms of which are
incorporated herein by reference. The Company hereby acknowledges that the
Mortgage Loans will be part of a REMIC. In no event will the Company service the
Mortgage Loans in a manner that would (i) cause the REMIC to fail to qualify as
a REMIC or (ii) result in the imposition of a tax upon the REMIC (including but
not limited to the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code). In addition, Company hereby acknowledges that from
and after the date hereof, the Assigned Loans will be subject to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of October
1, 2005, by and among Xxxxxxx Xxxxx Mortgage Investors, Inc., Xxxxx Fargo Bank,
N.A. (the "Master Servicer" and "Securities Administrator") and Wachovia Bank,
National Association. Pursuant to the Pooling and Servicing Agreement, the
Master Servicer is required to monitor the Company's performance of its
servicing obligations under the Agreement. Such right will include, without
limitation, the right to terminate the Company under the Agreement upon the
occurrence of an event of default thereunder, the right to receive all
remittances required to be made by the Company under the Agreement, the right to
receive all monthly reports and other data required to be delivered by the
Company under the Agreement, the right to examine the books and records of the
Company, indemnification rights, and the right to exercise certain rights of
consent and approval relating to actions taken by the Company.
6. In connection therewith, Company hereby agrees that all remittances
required to be made with respect to the Assigned Loans pursuant to the Agreement
will be made in accordance with the following wire transfer instructions:
Bank: Xxxxx Fargo Bank, N.A.
ABA Routing Number: 000-000-000
Account Name: Corporate Trust Clearing
Account Number: 0000000000
For Credit to: MLMI Series 2005-A8, acct# 17188800
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and Company shall deliver all reports required to be delivered under the
Agreement to Assignee and to the Master Servicer at:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: MLMI 2005-A8
It is the intention of Assignor, Company and Assignee that this AAR
Agreement shall be binding upon and for the benefit of the respective successors
and assigns of the parties hereto. Neither Company nor Assignor shall amend or
agree to amend, modify, waive, or otherwise alter any of the terms or provisions
of the Agreement which amendment, modification, waiver or other alteration would
in any way affect the Assigned Loans without the prior written consent of
Assignee.
Modification of the Agreement
7. The Assignor, Assignee and Company hereby amend the Agreement as
follows:
(a) The Assignor, Assignee and Company hereby amend Section 1 of the
Agreement by deleting the definition of "Business Day" in its entirety and
replacing it with the following:
"Business Day: Any day other than a Saturday or Sunday, or a day on which
banking and savings and loan institutions in the State of New York, State
of Maryland, State of Minnesota or State of California are authorized or
obligated by law or executive order to be closed."
(b) The Assignor, Assignee and Company hereby amend Section 1 of the
Agreement by adding the definitions of "Controlling Class C Holder", "Master
Servicer", "Pooling and Servicing Agreement" and "Securities Administrator" as
follows:
"Controlling Class C Holder: The entity that owns the majority of the Class
C Certificates."
"Master Servicer: Xxxxx Fargo Bank, N.A."
"Pooling and Servicing Agreement: The pooling and servicing agreement dated
as of October 1, 2005, by and among Xxxxxxx Xxxxx Mortgage Investors, Inc.,
the Master Servicer, the Securities Administrator and Wachovia Bank,
National Association, as trustee."
"Securities Administrator": Xxxxx Fargo Bank, N.A."
(c) The Assignor, Assignee and Company hereby amend Section 11.02 of
the Servicing Addendum to the Agreement by deleting the fifth, sixth and seventh
sentences of the first paragraph in their entirety and replacing them with the
following:
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"In the event that any payment due under any Mortgage Loan remains
delinquent for a period of ninety (90) days or more, the Seller shall
provide written notice to the Master Servicer in the event the Seller
intends to proceed with foreclosure. In connection with any foreclosure
proceedings, the Seller shall be responsible for all costs and expenses
incurred by it in any such foreclosure proceedings; provided, however, that
it shall be entitled to reimbursement thereof from the related Mortgaged
Property, as contemplated in Section 11.05."
(d) The Assignor, Assignee and Company hereby amend each of the second
and fifth paragraphs of Section 11.02 of the Servicing Addendum to the Agreement
by deleting the section reference "(a)" at the beginning thereof.
(e) The Assignor, Assignee and Company hereby amend Section 11.02 of
the Servicing Addendum to the Agreement by adding the following paragraphs at
the end of such section:
"Nothwithstanding anything in this Agreement to the contrary, for so
long as the Master Servicer has not notified the Seller that the following
provisions are no longer required:"
(a) The Seller shall not commence foreclosure proceedings with respect
to a Mortgage Loan unless (i) no later than five Business Days prior to its
commencement of such foreclosure proceedings, it notifies the Master
Servicer of its intention to do so, and (ii) the Controlling Class C
Holder, either directly or through the Master Servicer, does not, within
such five-Business-Day period, affirmatively object to such action.
(b) In the event that the Seller determines not to proceed with
foreclosure proceedings with respect to a Mortgage Loan that becomes 90
days' or more delinquent and the Seller has determined that it is unable to
collect payments due under such Mortgage Loan in accordance with Accepted
Servicing Practices, the Seller shall, prior to taking any action with
respect to such Mortgage Loan, promptly provide the Master Servicer with
notice of such determination and a description of such other action as it
intends to take with respect to such Mortgage Loan; provided, that the
Seller shall not be permitted to proceed with any such action unless the
Controlling Class C Holder, either directly or through the Master Servicer,
does not, within five Business Days following such notice, affirmatively
object to the Seller taking such action.
(c) If the Controlling Class C Holder timely and affirmatively objects
to an action or contemplated action of the Seller pursuant to either (a) or
(b) above, then the Controlling Class C Holder shall instruct the Master
Servicer to hire, at the Controlling Class C Holder's sole cost and
expense, three appraisal firms, selected by the Master Servicer in its sole
and absolute discretion from the list of appraisal firms attached as
Attachment 6 to the Assignment, Assumption and Recognition Agreement, dated
as of November 15, 2005, among Xxxxxxx Xxxxx Mortgage Lending, Inc.,
Xxxxxxx Xxxxx Mortgage Investors, Inc. and the Seller, to compute the fair
value of the Mortgaged Property relating to the related Mortgage Loan
utilizing the Xxxxxx Mae Form 2055 Exterior-Only Inspection Residential
Appraisal Report (each such appraisal-firm
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computation, a "Fair Value Price"), in each case (other than as set forth
in (d) below) no later than 30 days from the date of such objection by the
Controlling Class C Holder If the Master Servicer shall have received three
Fair Value Prices by the end of such 30-day period, then the Controlling
Class C Holder shall, no later than 5 days after the expiration of such
30-day period, purchase such Mortgage Loan and the related Mortgaged
Property at an amount equal to the sum of (i) accrued and unpaid interest
on such Mortgage Loan as of such purchase date ("Accrued Interest") and
(ii) the highest of such three Fair Value Prices respectively determined by
such appraisal firms, and shall promptly delivery such amount to the Seller
for deposit into the Custodial Account. All costs relating to the
computation of the related Fair Value Prices shall be for the account of
the Controlling Class C Holder and shall be paid by the Controlling Class C
Holder at the time of such Mortgage Loan and the related Mortgaged Property
are purchased by the Controlling Class C Holder.
(d) If the Master Servicer shall not have received three Fair Value
Prices at the end of the 30-day period set forth in (c) above, then:
(i) The Master Servicer shall obtain such three Fair Value Prices
no later than 15 days after the end of such 30-day period.
(ii) If the Master Servicer shall have only received two Fair
Value Prices at the end of such 15-day extension period, then the Master
Servicer will determine, in its sole and absolute discretion, the fair
value of the Mortgaged Property relating to such Mortgage Loan, related
Insurance Proceeds and the current delinquency status of such Mortgage
Loan) (such fair value, the "Master Servicer Fair Value Price"), and the
Controlling Class C Holder shall, no later than 5 days after the expiration
of such 15-day extension period, purchase (and deliver to the Seller the
purchase price for) such Mortgage Loan and the related Mortgaged Property
at an amount equal to the sum of (A) Accrued Interest thereon and (B) the
higher of (1) the highest of such two Fair Value Prices determined by such
appraisal firms and (2) the Master Servicer Fair Value Price.
(iii) If the Master Servicer shall have received only one Fair
Value Price at the end of such 15-day extension period, then the Master
Servicer will determine, in its sole and absolute discretion, the Master
Servicer Fair Value Price of the Mortgaged Property related to such
Mortgage Loan, and:
(A) if such Master Servicer Fair Value Price is equal to or
greater than the unpaid principal balance of the related Mortgage Loan
as of such date (the "Unpaid Principal Balance"), then the Controlling
Class C Holder shall, no later than 5 days after the expiration of
such 15-day extension period, purchase (and deliver to the Seller the
purchase price for) such Mortgage Loan and the related Mortgaged
Property at an amount equal to the sum of (1) Accrued Interest thereon
and (2) such Master Servicer Fair Value Price; and
(B) if such Master Servicer Fair Value Price is less than
the related Unpaid Principal Balance, then the Controlling Class C
Holder shall, no later than 5 days after the expiration of such 15-day
extension period, purchase (and deliver
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to the Seller the purchase price for) such Mortgage Loan and the
related Mortgaged Property at an amount equal to the sum of (1)
Accrued Interest thereon and (2) the related Unpaid Principal Balance
(such sum, the "Preliminary Purchase Price"); provided, that the
provisions of clause (d)(iv) shall thereafter apply.
(iv) Following the payment by the Controlling Class C Holder of the
Preliminary Purchase Price, the Master Servicer shall continue to hire
appraisal firms at the Controlling Class C Holder's sole cost and expense
to compute the Fair Value Price of the Mortgaged Property related to such
Mortgage Loan, and at such time as two such Fair Value Prices shall have
been obtained:
(A) if the sum of (1) Accrued Interest on the related
Mortgage Loan and (2) the higher of (x) the highest of such two Fair
Value Prices determined by such appraisal firms and (y) the Master
Servicer Fair Value Price of the Mortgaged Property related to such
Mortgage Loan (such sum, the "Revised Fair Value Price") is greater
than such Preliminary Purchase Price, then the Master Servicer shall
promptly notify the Controlling Class C Holder and the Seller of such
calculation, and the Controlling Class C Holder shall, no later than 5
days after such notice, remit to the Seller, for deposit into the
Custodial Account, the difference between such Revised Fair Value
Price and such Preliminary Purchase Price; and
(B) if such Preliminary Purchase Price is greater than such
Revised Fair Value Price, then the Master Servicer shall promptly
notify the Controlling Class C Holder and the Seller of such
calculation, and the Seller shall, no later than 5 days after such
notice, remit to the Controlling Class C Holder, from funds then on
deposit in the Custodial Account, the difference between such
Preliminary Purchase Price and such Revised Fair Value Price.
(e) Notwithstanding anything herein to the contrary, the Controlling
Class C Holder shall not be entitled to any of its rights set forth herein
with respect to a Mortgage Loan following its failure to purchase such
Mortgage Loan and the related Mortgaged Property, at the related purchase
price set forth in this Section 11.02 within the timeframe set forth in
this Section 11.02 following the Controlling Class C Holder's objection to
an action of the Seller, and the Seller shall provide the Master Servicer
written notice of such failure.
(f) Any notice, confirmation, instruction or objection pursuant to
paragraphs (a), (b), (c) and (d) above may be delivered via facsimile or
other written or electronic communication as the parties hereto and the
Controlling Class C Holder may agree to from time to time.
(g) For the avoidance of doubt, the Controlling Class C Holder's
rights set forth in this Section 11.02 are intended to provide the
Controlling Class C Holder, for so long as it [owns 100% of the Private
Certificates (as defined in the Pooling and Servicing Agreement) and] has
not forfeited its right under this Section 11.02 as set forth in clause
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(e) above, with the unilateral right to control foreclosure decisions in
respect of delinquent and defaulted Mortgage Loans, and certain exclusive
purchase rights so as to maximize the recovery value on delinquent and
defaulted Mortgage Loans.
(h) To the extent that the Controlling Class C Holder purchases any
Mortgage Loan pursuant to this Section 11.02 Seller will continue to
service such Mortgage Loan in accordance with this Agreement. The parties
acknowledge that, in such event, the Master Servicer will have no duty or
responsibility to master service any such Mortgage Loan."
(f) The Assignor, Assignee and Company hereby amend Section 11.05 of
the Agreement by adding the following as clause (ix):
"(ix) to make payments to the Controlling Class C Holder in the
amounts and in the manner provided for in Section 11.02."
(g) The Assignor, Assignee and Company hereby amend Section 11.14 of
the Servicing Addendum to the Agreement by deleting the first and second
sentences of the third paragraph in its entirety and replacing it with the
following:
"With respect to any remittance received by the Purchaser on or after the
Business Day following the Business Day on which such payment was due, the
Seller shall pay to the Purchaser interest on any such late payment at an
annual rate equal to the rate of interest as is publicly announced from
time to time by The Chase Manhattan Bank, New York, New York, at its
principal office as its prime lending rate, adjusted as of the date of each
change, plus three percentage points, but in no event greater than the
maximum amount permitted by applicable law. Such interest shall be paid by
the Seller to the Purchaser on the date such late payment is made and shall
cover the period commencing with the date on which such payment was due and
ending with the date on which such payment is made, both inclusive."
(h) The Assignor, Assignee and Company hereby amend Section 11.15 of
the Servicing Addendum to the Agreement by deleting the first sentence of such
section and replacing it with the following:
"No later than the fifth Business Day of each month, the Seller shall
furnish to the Purchaser and the Master Servicer a file via computer tape,
email or modem containing, and a hard copy of, the monthly data and the
Seller shall also furnish to the Purchaser and the Master Servicer a report
in the format set forth in Attachment 3 and Attachment 4 to the Assignment,
Assumption and Recognition Agreement, dated as of November 15, 2005 among
Xxxxxxx Xxxxx Mortgage Lending, Inc., Xxxxxxx Xxxxx Mortgage Investors,
Inc. and the Seller, with respect to defaulted Mortgage Loans and Realized
Loss Calculations."
(i) The Assignor, Assignee and Company hereby amend Section 11.18 of
the Servicing Addendum to the Agreement, by deleting such section in its
entirety and replacing it with the following:
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"Upon the foreclosure sale of any Mortgaged Property or the acquisition
thereof by the Purchaser pursuant to a deed-in-lieu of foreclosure, the
Seller shall submit to the Purchaser and the Master Servicer a liquidation
report in the format set forth in Attachment 4 to the Assignment,
Assumption and Recognition Agreement, dated as of November 15, 2005 among
Xxxxxxx Xxxxx Mortgage Lending, Inc., Xxxxxxx Xxxxx Mortgage Investors,
Inc. and the Seller, with respect to such Mortgaged Property and all
supporting documentation reasonably required by the Master Servicer."
(j) The Assignor, Assignee and Company hereby amend Section 11.21 of
the Servicing Addendum to the Agreement, by deleting the second paragraph of
such section in its entirety and replacing it with the following:
"The obligation of the Seller to make such Monthly Advances is
mandatory, notwithstanding any other provision of this Agreement, and, with
respect to any Mortgage Loan or REO Property, will continue through the
last Monthly Payment due prior to the payment in full of the Mortgage Loan,
or through the last Remittance Date prior to the Remittance Date for the
distribution of all Liquidation Proceeds and other payments or recoveries
(including REO Disposition proceeds, Insurance Proceeds and Condemnation
Proceeds) with respect to the Mortgage Loan; provided that, notwithstanding
anything herein to the contrary, no Monthly Advance shall be required to be
made hereunder by the Seller if such Monthly Advance would, if made,
constitute a Nonrecoverable Monthly Advance. The determination by the
Seller that it has made a Nonrecoverable Monthly Advance or that any
proposed Monthly Advance, if made, would constitute a Nonrecoverable
Monthly Advance, shall be evidenced by an Officers' Certificate delivered
to the Purchaser and Master Servicer."
(k) The Assignor, Assignee and Company hereby amend Section 11.24 of
the Servicing Addendum to the Agreement, by deleting such section in its
entirety and replacing it with the following:
Section 11.24 Statement as to Compliance. The Seller will deliver to
the Master Servicer, on or before February 28 of each year, beginning
February 28, 2006, an Officers' Certificate in a form acceptable for filing
with the Securities and Exchange Commission as an exhibit to a Form 10-K
stating, as to each signatory thereof, that (i) a review of the activities
of the Seller during the preceding year and of performance under this
Agreement has been made under such officers' supervision and (ii) to the
best of such officers' knowledge, based on such review, the Seller has
fulfilled all of its obligations under this Agreement throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and
status thereof.
(l) The Assignor, Assignee and Company hereby amend Section 11.25 of
the Servicing Addendum to the Agreement, by deleting such section in its
entirety and replacing it with the following:
Section 11.25 Independent Public Accountants' Servicing Report. On or
before February 28 of each year, beginning February 28, 2006, the Seller at
its expense shall
12
cause a firm of independent public accountants (which may also render other
services to the Seller) which is a member of the American Institute of
Certified Public Accountants to furnish a statement to the Master Servicer
in a form acceptable for filing with the Securities and Exchange Commission
as an exhibit to a Form 10-K to the effect that such firm has examined
certain documents and records relating to the servicing of the Mortgage
Loans under this Agreement or of mortgage loans under pooling and servicing
agreements (including the Mortgage Loans and this Agreement) substantially
similar one to another (such statement to have attached thereto a schedule
setting forth the pooling and servicing agreements covered thereby) and
that, on the basis of such examination conducted substantially in
compliance with the Uniform Single Attestation Program for Mortgage
Bankers, such firm confirms that such servicing has been conducted in
compliance with such pooling and servicing agreements except for such
significant exceptions or errors in records that, in the opinion of such
firm, the Uniform Single Attestation Program for Mortgage Bankers requires
it to report.
(m) The Assignor, Assignee and Company hereby amend Section 14.01 of
the Agreement by deleting such section in its entirety and replacing it with the
following:
"Subsection 14.01 Additional Indemnification by the Seller.
(a) In addition to the indemnification provided in Subsection
7.03, the Seller shall indemnify the Purchaser and hold the Purchaser
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses that the Purchaser may
sustain in any way related to the failure of the Seller to perform its
obligations under this Agreement, including but not limited to its
obligation to service and administer the Mortgage Loans in strict
compliance with the terms of this Agreement or any reconstitution Agreement
entered into purchase to Section 12, unless such failure is due to the
Purchaser's willful misconduct or gross negligence.
(b) The Seller shall indemnify and hold harmless the Master
servicer and its officers, directors, agents and affiliates from and
against any losses, damages, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach by the Seller or any of its officers,
directors, agents or affiliates of its obligations under Attachment 5 to
the Assignment, Assumption and Recognition Agreement, dated as of November
15, 2005 among Xxxxxxx Xxxxx Mortgage Lending, Inc., Xxxxxxx Xxxxx Mortgage
Investors, Inc., and the Seller or the negligence, bad faith or willful
misconduct of the Seller in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the
Master Servicer, then the Seller agrees that it shall contribute to the
amount paid or payable by the Master Servicer as a result of the losses,
claims, damages or liabilities of the Master Servicer in such proportion as
is appropriate to reflect the relative fault of the Master Servicer on the
one hand and the Seller on the other in connection with a breach of the
Servicer's obligations under Attachment 5 to the Assignment, Assumption and
Recognition Agreement, dated as of November 15, 2005 among Xxxxxxx Xxxxx
Mortgage Lending, Inc., Xxxxxxx Xxxxx Mortgage Investors, Inc.,
13
and the Seller or the Seller's negligence, bad faith or willful misconduct
in connection therewith."
(n) The Assignor, Assignee and Company hereby amend Section 15.01 of
the Agreement, by adding an "or" at the end of clause (xi) and adding the
following clause (xii):
"(xii) failure by the Seller to duly perform, within the required time
period, its obligations under Sections 11.24 or 11.25 or its obligation to
provide a certification in the form of Attachment 5 to the Assignment,
Assumption and Recognition Agreement, dated as of November 15, 2005 among
Xxxxxxx Xxxxx Mortgage Lending, Inc., Xxxxxxx Xxxxx Mortgage Investors,
Inc., and the Seller, to the Master Servicer pursuant to Section 12 which
failure continues unremedied for a period of fifteen (15) days after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Seller by any party to this
Agreement or by the Master Servicer."
Miscellaneous
8. All demands, notices and communications related to the Assigned Loans,
the Agreement and this AAR Agreement shall be in writing and shall be deemed to
have been duly given if personally delivered or mailed by registered mail,
postage prepaid, as follows:
a. In the case of Company,
GreenPoint Mortgage Funding, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
b. In the case of Assignor,
Xxxxxxx Xxxxx Mortgage Lending, Inc.
World Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MLMI 2005-A8
c. In the case of Assignee,
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MLMI 2005-A8
d. In the case of Master Servicer,
Xxxxx Fargo Bank, N.A.
14
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: MLMI 2005-A8
9. This AAR Agreement shall be construed in accordance with the laws of the
State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
10. No term or provision of this AAR Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
11. This AAR Agreement shall inure to the benefit of the successors and
assigns of the parties hereto. Any entity into which Assignor, Assignee or
Company may be merged or consolidated shall without the requirement for any
further writing, be deemed Assignor, Assignee or Company, respectively
hereunder.
12. This AAR Agreement shall survive the conveyance of the Assigned Loans
as contemplated in this AAR Agreement.
13. This AAR Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
14. In the event that any provision of this AAR Agreement conflicts with
any provision of the Agreements with respect to the Assigned Loans, the terms of
this AAR Agreement shall control.
15. Each party will pay any commissions it has incurred and the Assignor
shall pay the fees of its attorneys and reimburse the Company for all
out-of-pocket expenses, including attorney's fees, incurred by the Company in
connection with the negotiations for, documenting of and closing of the
transactions contemplated by this AAR Agreement.
16. For purposes of this AAR Agreement only, the Master Servicer shall be
considered a third party beneficiary, entitled to all the rights and benefits
accruing to any Master Servicer as set forth herein as if it were a direct party
to this AAR Agreement.
15
IN WITNESS WHEREOF, the parties hereto have executed this AAR Agreement as
of the day and year first above written.
XXXXXXX XXXXX MORTGAGE LENDING, INC.
Assignor
By:
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Assignee
By:
----------------------------------
Name: Xxxx Park
Title: Managing Director
GREENPOINT MORTGAGE FUNDING, INC.
Company
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
ACKNOWLEDGED AND AGREED:
XXXXX FARGO BANK, N.A.
Master Servicer
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
ATTACHMENT 1
ASSIGNED LOAN SCHEDULE
(Intentionally Omitted)
ATTACHMENT 2
MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT,
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
(See Exhibits 99.5 and 99.6 of this Form 8-K)
ATTACHMENT 3
REPORTING DATA FOR DEFAULTED LOANS
Data must be submitted to Xxxxx Fargo Bank in an EXCEL spreadsheet format with
fixed field names and data type. The EXCEL spreadsheet should be used as a
template consistently every month when submitting data.
TABLE: DELINQUENCY
NAME TYPE SIZE
---- --------------- ----
SERVICER LOAN # NUMBER (DOUBLE) 8
INVESTOR LOAN # NUMBER (DOUBLE) 8
BORROWER NAME TEXT 20
ADDRESS TEXT 30
STATE TEXT 2
Due Date Date/Time 8
ACTION CODE TEXT 2
FC Received Date/Time 8
File Referred to Atty Date/Time 8
NOD Date/Time 8
Complaint Filed Date/Time 8
Sale Published Date/Time 8
Target Sale Date Date/Time 8
Actual Sale Date Date/Time 8
Loss Mit Approval Date Date/Time 8
Loss Mit Type Text 5
Loss Mit Estimated Completion Date Date/Time 8
Loss Mit Actual Completion Date Date/Time 8
Loss Mit Broken Plan Date Date/Time 8
BK Chapter Text 6
BK Filed Date Date/Time 8
Post Petition Due Date/Time 8
Motion for Relief Date/Time 8
Lift of Stay Date/Time 8
RFD Text 10
Occupant Code Text 10
Eviction Start Date Date/Time 8
Eviction Completed Date Date/Time 8
List Price Currency 8
List Date Date/Time 8
Accepted Offer Price Currency 8
Accepted Offer Date Date/Time 8
Estimated REO Closing Date Date/Time 8
Actual REO Sale Date Date/Time 8
- ITEMS IN BOLD ARE MANDATORY FIELDS. WE MUST RECEIVE INFORMATION IN THOSE
FIELDS EVERY MONTH IN ORDER FOR YOUR FILE TO BE ACCEPTED.
The Action Code Field should show the applicable numeric code to indicate that a
special action is being taken. The Action Codes are the following:
12-RELIEF PROVISIONS
15-BANKRUPTCY/LITIGATION
20-REFERRED FOR DEED-IN-LIEU
30-REFERRED FORE FORECLOSURE
00-XXXXXX
00-XXXXXXXXXX
00-XXX-XXXX FOR SALE
71-THIRD PARTY SALE/CONDEMNATION
72-REO-PENDING CONVEYANCE-POOL INSURANCE CLAIM FILED
Xxxxx Fargo Bank will accept alternative Action Codes to those above, provided
that the Codes are consistent with industry standards. If Action Codes other
than those above are used, the Servicer must supply Xxxxx Fargo Bank with a
description of each of the Action Codes prior to sending the file.
Description of Action Codes:
ACTION CODE 12 - To report a Mortgage Loan for which the Borrower has been
granted relief for curing a delinquency. The Action Date is the date the relief
is expected to end. For military indulgence, it will be three months after the
Borrower's discharge from military service.
ACTION CODE 15 - To report the Borrower's filing for bankruptcy or instituting
some other type of litigation that will prevent or delay liquidation of the
Mortgage Loan. The Action Date will be either the date that any repayment plan
(or forbearance) instituted by the bankruptcy court will expire or an additional
date by which the litigation should be resolved.
ACTION CODE 20 - To report that the Borrower has agreed to a deed-in-lieu or an
assignment of the property. The Action Date is the date the Servicer decided to
pursue a deed-in-lieu or the assignment.
ACTION CODE 30 - To report that the decision has been made to foreclose the
Mortgage Loan. The Action Date is the date the Servicer referred the case to the
foreclosure attorney.
ACTION CODE 60 - To report that a Mortgage Loan has been paid in full either at,
or prior to, maturity. The Action Date is the date the pay-off funds were
remitted to the Master Servicer.
ACTION CODE 65 - To report that the Servicer is repurchasing the Mortgage Loan.
The Action Date is the date the repurchase proceeds were remitted to the Master
Servicer.
ACTION CODE 70 - To report that a Mortgage Loan has been foreclosed or a
deed-in-lieu of foreclosure has been accepted, and the Servicer, on behalf of
the owner of the Mortgage Loan, has acquired the property and may dispose of it.
The Action Date is the date of the foreclosure sale or, for deeds-in-lieu, the
date the deed is recorded on behalf of the owner of the Mortgage Loan.
ACTION CODE 71 - To report that a Mortgage Loan has been foreclosed and a third
party acquired the property, or a total condemnation of the property has
occurred. The Action Date is the date of the foreclosure sale or the date the
condemnation award was received.
ACTION CODE 72 - To report that a Mortgage Loan has been foreclosed, or a
deed-in-lieu has been accepted, and the property may be conveyed to the mortgage
insurer and the pool insurance claim has been filed. The Action Date is the date
of the foreclosure sale, or, for deeds-in-lieu, the date of the deed for
conventional mortgages.
The Loss Mit Type field should show the approved Loss Mitigation arrangement.
The following are acceptable:
ASUM- APPROVED ASSUMPTION
BAP- BORROWER ASSISTANCE PROGRAM
CO- CHARGE OFF
DIL- DEED-IN-LIEU
FFA- FORMAL FORBEARANCE AGREEMENT
MOD- LOAN MODIFICATION
PRE- PRE-SALE
SS- SHORT SALE
MISC- ANYTHING ELSE APPROVED BY THE PMI OR POOL INSURER
Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply Xxxxx Fargo Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The Occupant Code field should show the current status of the property. The
acceptable codes are:
MORTGAGOR
TENANT
UNKNOWN
VACANT
ATTACHMENT 4
REALIZED LOSS CALCULATION INFORMATION
XXXXX FARGO BANK, N.A.
Form 332
Calculation of Realized Loss
Purpose
To provide the Servicer with a form for the calculation of any Realized Loss (or
gain) as a result of a Mortgage Loan having been foreclosed and Liquidated.
Distribution
The Servicer will prepare the form in duplicate and send the original together
with evidence of conveyance of title and appropriate supporting documentation to
the Master Servicer with the Monthly Accounting Reports which supports the
Mortgage Loan's removal from the Mortgage Loan Activity Report. The Servicer
will retain the duplicate for its own records.
Due Date
With respect to any liquidated Mortgage Loan, the form will be submitted to the
Master Servicer no later than the date on which statements are due to the Master
Servicer under Section 4.02 of this Agreement (the "Statement Date") in the
month following receipt of final liquidation proceeds and supporting
documentation relating to such liquidated Mortgage Loan; provided, that if such
Statement Date is not at least 30 days after receipt of final liquidation
proceeds and supporting documentation relating to such liquidated Mortgage Loan,
then the form will be submitted on the first Statement Date occurring after the
30th day following receipt of final liquidation proceeds and supporting
documentation.
Preparation Instructions
The numbers on the form correspond with the numbers listed below.
1. The actual Unpaid Principal Balance of the Mortgage Loan.
2. The Total Interest Due less the aggregate amount of servicing fee that
would have been earned if all delinquent payments had been made as agreed.
3-7. Complete as necessary. All line entries must be supported by copies of
appropriate statements, vouchers, receipts, canceled checks, etc., to
document the expense. Entries not properly documented will not be
reimbursed to the Servicer.
8. Accrued Servicing Fees based upon the Scheduled Principal Balance of the
Mortgage Loan as calculated on a monthly basis.
10. The total of lines 1 through 9.
Credits
11-17. Complete as necessary. All line entries must be supported by copies of
the appropriate claims forms, statements, payment checks, etc. to document
the credit. If the Mortgage Loan is subject to a Bankruptcy Deficiency, the
difference between the Unpaid Principal Balance of the Note prior to the
Bankruptcy Deficiency and the Unpaid Principal Balance as reduced by the
Bankruptcy Deficiency should be input on line 16.
18. The total of lines 11 through 17.
Total Realized Loss (or Amount of Any Gain)
19. The total derived from subtracting line 18 from 10. If the amount
represents a realized gain, show the amount in parenthesis (___).
XXXXX FARGO BANK, N.A.
CALCULATION OF REALIZED LOSS
XXXXX FARGO BANK, N.A. Trust: ___________________________
Prepared by: __________________ Date: _______________
Phone: ______________________
Servicer Loan No. Servicer Name Servicer Address
----------------- ------------- ----------------
XXXXX FARGO BANK, N.A.
Loan No. _____________________________
Borrower's Name: ________________________________________________________
Property
Address: ________________________________________________________________
LIQUIDATION AND ACQUISITION EXPENSES:
Actual Unpaid Principal Balance of Mortgage Loan $________________(1)
Interest accrued at Net Rate ________________(2)
Attorney's Fees ________________(3)
Taxes ________________(4)
Property Maintenance ________________(5)
MI/Hazard Insurance Premiums ________________(6)
Hazard Loss Expenses ________________(7)
Accrued Servicing Fees ________________(8)
Other (itemize) ________________(9)
________________________________________________ $________________
________________________________________________ ________________
________________________________________________ ________________
________________________________________________ ________________
TOTAL EXPENSES $________________(10)
CREDITS:
Escrow Balance $________________(11)
HIP Refund ________________(12)
Rental Receipts ________________(13)
Hazard Loss Proceeds ________________(14)
Primary Mortgage Insurance Proceeds ________________(15)
Proceeds from Sale of Acquired Property ________________(16)
Other (itemize) ________________(17)
________________________________________________ ________________
________________________________________________ ________________
TOTAL CREDITS $________________(18)
TOTAL REALIZED LOSS (OR Amount OF GAIN)
$________________(19)
ATTACHMENT 5
(a) For so long as the Mortgage Loans are being master serviced by a master
servicer (the "Master Servicer") in a securitization transaction with respect to
which the Master Servicer files a Xxxxxxxx-Xxxxx certification directly with the
SEC (a "Transaction"), by February 28th of each year (or if not a Business Day,
the immediately preceding Business Day), or in connection with any additional
Xxxxxxxx-Xxxxx certifications directly filed by the Master Servicer, upon thirty
(30) days written request, an officer of the Servicer shall execute and deliver
an Officer's Certificate to the Master Servicer for the benefit of such Master
Servicer and its officers, directors and affiliates, certifying as to the
following matters:
(i) Based on my knowledge, the information relating to the Mortgage Loans
and the servicing thereof submitted by the Servicer to the Master Servicer
which is used in connection with preparation of the reports on Form 8-K and
the annual report on Form 10-K filed with the SEC with respect to the
Transaction, 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 date of this certification;
(ii) The servicing information required to be provided to the Master
Servicer by the Servicer under this Servicing Agreement has been provided
to the Master Servicer;
(iii) I am responsible for reviewing the activities performed by the
Servicer under the Servicing Agreement and based upon the review required
by this Servicing Agreement, and except as disclosed in the Annual
Statement of Compliance, the Annual Independent 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 Master Servicer, the Servicer has, as of the date of this
certification fulfilled its obligations under this Servicing Agreement; and
(iv) I have disclosed to the Master Servicer all significant deficiencies
relating to the Servicer's compliance with the minimum servicing standards
in accordance with a review conducted in compliance under the Uniform
Single Attestation Program for Mortgage Bankers or similar standard as set
forth in the Servicing Agreement.
ATTACHMENT 6
LIST OF APPRAISAL FIRMS
[INTENTIONALLY OMITTED]
