Exhibit 99.6
RECONSTITUTED SERVICING AGREEMENT
This RECONSTITUTED SERVICING AGREEMENT, dated as of December 1, 2005
(the "Agreement"), is entered into between Countrywide Servicing LP
("Countrywide") and Taberna Realty Holdings Trust ("TRHT") and acknowledged by
Countrywide Home Loans, Inc. ("Countrywide Home Loans"), Xxxxxxx Xxxxx Mortgage
Investors, Inc. ("Depositor"), Wachovia Bank, National Association, as indenture
trustee on behalf of the Trust defined below (the "Indenture Trustee") and Xxxxx
Fargo Bank, N.A. (the "Master Servicer"):
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Assignor") transferred and
assigned all of its rights, title and interest in the mortgage loans identified
on Exhibit A hereto (the "Mortgage Loans") in, to and under that certain Flow
Seller's Warranties and Servicing Agreement, Conventional Residential Fixed Rate
Mortgage Loans (the "Flow Seller's Warranties and Servicing Agreement"), dated
as of June 1, 2004, by and between the Assignor, and Countrywide Home Loans, to
Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings, Inc. ("Xxxxxx Capital"),
pursuant to an Assignment and Conveyance Agreement, dated as of September 30,
2005, by and between the Assignor and Xxxxxx Capital (the "Assignment and
Conveyance"); and
WHEREAS, Xxxxxx Capital transferred and assigned all of its rights,
title and interest in the Mortgage Loans in, to and under the Assignment and
Conveyance pursuant to an Assignment, Assumption and Recognition Agreement by
and between Xxxxxx Capital and TRHT, dated as of September 30, 2005;
WHEREAS, TRHT shall convey all of its right, title, interest and
obligations to such Mortgage Loans to the Depositor pursuant to the Mortgage
Loan Purchase Agreement, dated as of December 1, 2005, between TRHT and the
Depositor, and the Depositor shall convey all of its right, title, interest and
obligations in and to the Mortgage Loans to Xxxxxxx Xxxxx Mortgage Investors
Trust, Series 2005-A9 (the "Trust"), pursuant to that certain Sale and Servicing
Agreement, dated as of December 1, 2005, among TRHT, the Depositor, the Trust,
the Indenture Trustee and the Master Servicer (the "Sale and Servicing
Agreement").
WHEREAS, Countrywide shall service the Mortgage Loans for the Trust,
as owner of the Mortgage Loans, from and after the date hereof in accordance
with the servicing provisions contained in Flow Seller's Warranties and
Servicing Agreement as modified herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, and of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. TRHT warrants and represents to and covenants with Countrywide
that:
(a) Attached hereto as Exhibit B is a true and accurate copy of the Flow
Seller's Warranties and Servicing Agreement, which agreement is in
full force and effect as of the date hereof and the provisions of
which have not been waived, amended or modified by TRHT in any
respect, nor has any notice of termination been given by TRHT
thereunder;
(b) TRHT is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, and has all
requisite power and authority to acquire, own and sell the Mortgage
Loans;
(c) TRHT has full organizational power and authority to execute, deliver
and perform its obligations under this Agreement, and to consummate
the transactions set forth
herein. The consummation of the transactions contemplated by this
Agreement is in the ordinary course of TRHT's business and will not
conflict with, or result in a breach of, any of the terms, conditions
or provisions of TRHT's charter or by-laws or any legal restriction,
or any material agreement or instrument to which TRHT 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 TRHT or its property is
subject. The execution, delivery and performance by TRHT of this
Agreement and the consummation by it of the transactions contemplated
hereby, have been duly authorized by all necessary corporate action on
part of TRHT. This Agreement has been duly executed and delivered by
TRHT and, upon the due authorization, execution and delivery by
Countrywide, will constitute the valid and legally binding obligation
of TRHT enforceable against TRHT in accordance with its terms except
as enforceability may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and by general
principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law; and
(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 TRHT in connection with the execution, delivery or
performance by TRHT of this Agreement, or the consummation by it of
the transactions contemplated hereby.
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2. Countrywide hereby states, as of the Closing Date (as defined in
the Sale and Servicing Agreement referred to below), the representations and
warranties contained in Section 3.01 of the Flow Seller's Warranties and
Servicing Agreement (except with respect to Section 3.01(k), (l), (n) and (o),
to and for the benefit of the Trust, and by this reference incorporates such
representations and warranties herein, as of such Closing Date.
3. From and after the date hereof, Countrywide shall recognize the
Trust as the owner of the Mortgage Loans, and Countrywide will service the
Mortgage Loans in accordance with the servicing provisions contained in the Flow
Seller's Warranties and Servicing Agreement for the benefit of the Trust, and
shall look solely to the Trust for performance of the obligations of Purchaser
under the Flow Seller's Warranties and Servicing Agreement with respect to the
Mortgage Loans.
4. Section 4.04 (Establishment of and Deposits to Custodial Account)
is hereby amended by replacing the phrase "Countrywide Home Loans, Inc. in trust
for the Purchaser of Conventional Residential Conventional Residential Mortgage
Loans, and various Mortgagors" with "Countrywide Home Loans Servicing LP in
trust for Xxxxx Fargo Bank, N.A., as master servicer on behalf of the Xxxxxxx
Xxxxx Mortgage Investors Trust, Series 2005-A9".
5. Section 4.06 (Establishment of and Deposits to Escrow Account)
shall be amended by replacing the phrase "Countrywide Home Loans, Inc. in trust
for Purchaser of Conventional Residential Mortgage Loans, and various
Mortgagors" with "Countrywide Home Loans Servicing LP in trust for Xxxxx Fargo
Bank, N.A., as master servicer on behalf of the Xxxxxxx Xxxxx Mortgage Investors
Trust, Series 2005-A9".
6. Countrywide acknowledges that Xxxxx Fargo Bank, N.A. (the "Master
Servicer") has been appointed as the master servicer of the Mortgage Loans
pursuant to the Sale and Servicing Agreement. The Servicer shall deliver all
reports required to be delivered under the Flow Seller's Warranties and
Servicing Agreement to:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Mortgage Investors, Inc., Series 2005-A9
7. Countrywide hereby acknowledges that the Master Servicer of the
Mortgage Loans has the right to enforce all obligations of Countrywide under the
Flow Seller's Warranties and Servicing Agreement acting on behalf of the Trust,
as owner of the Mortgage Loans. Such rights will include, without limitation,
the right to terminate Countrywide under the Flow Seller's Warranties and
Servicing Agreement upon the occurrence of an event of default thereunder, the
right to receive all remittances required to be made by Countrywide under the
Flow Seller's Warranties and Servicing Agreement, the right to receive all
monthly reports and other data required to be delivered by Countrywide under the
Flow Seller's Warranties and Servicing Agreement, the right to examine the books
and records of Countrywide, indemnification rights and the right to exercise
certain rights of consent and approval relating to actions taken by the
Assignor. Notwithstanding the foregoing, it is understood that Countrywide shall
not be obligated to defend and indemnify and hold harmless the Master Servicer,
the Trust, the
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Indenture Trustee, TRHT and the Assignor from and against any losses, damages,
penalties, fines, forfeitures, judgments and any related costs including,
without limitation, reasonable and necessary legal fees, resulting from (i)
actions or inactions of Countrywide which were taken or omitted upon the
instruction or direction of the Master Servicer or (ii) the failure of the
Master Servicer or the Indenture Trustee, as applicable, to perform the
obligations of the "Purchaser" under the Flow Seller's Warranties and Servicing
Agreement. In addition, the Trust shall indemnify Countrywide and hold it
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 Countrywide may sustain in any way
related to (a) actions or inactions of Countrywide which were taken or omitted
upon the instruction or direction of the Trustee or Master Servicer, as
applicable, or (b) the failure of the Trustee or the Master Servicer, as
applicable, to perform the obligations of the "Purchaser" under the Flow
Seller's Warranties and Servicing Agreement and this Agreement. Countrywide
shall make all distributions under the Flow Seller's Warranties and Servicing
Agreement to the Master Servicer by wire transfer of immediately available funds
to:
Xxxxx Fargo Bank, N.A.
ABA Number: #000-000-000
Account Name: Corporate Trust Clearing
Account number: 0000000000
For further credit to: MLMI 2005-A9
Distribution Account Number: 00000000
8. Countrywide shall deliver all reports required to be delivered
under the Flow Seller's Warranties and Servicing Agreement to the Master
Servicer at the following address:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2005-A9
9. The Servicer and TRHT hereby amend the Flow Seller's Warranties
and Servicing Agreement as follows:
The following definitions are added to Article I:
Indenture Trustee: Wachovia Bank, National Association
Master Servicer: Xxxxx Fargo Bank, N.A., or its successors
in interest.
The definition of "Business Day" is deleted in its entirety and
replaced with the following:
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which the Federal Reserve is closed, or (iii) a day on which banking
institutions in the jurisdiction in which the Master Servicer or Countrywide are
authorized or obligated by law or executive order to be closed.
The following sentence is added to the end of the first paragraph of
Section 5.02 of the Flow Seller's Warranties and Servicing Agreement:
"In addition, no later than the tenth (10th) calendar day of each
month (or if such tenth day is not a Business Day, the Business Day immediately
preceding such tenth day), Countrywide shall forward to the Master Servicer
reports in a format agreed upon between the
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Master Servicer and Countrywide with respect to defaulted Mortgage Loans and
realized loss calculations, respectively."
Section 6.04 shall be amended by changing any reference to
"Purchaser" to "Master Servicer".
Section 6.05 shall be amended by changing any reference to
"Purchaser" to "Master Servicer" and by adding the following paragraphs at the
end of such section: For so long as the Mortgage Loans are being master
serviced by a master servicer in a securitization transaction, by March 15th of
each year (or if not a Business Day, the immediately preceding Business Day), an
officer of Countrywide shall execute and deliver an Officer's Certificate to the
Master Servicer for the benefit of such Master Servicer and its affiliates, and
in each case, its officers, directors and affiliates.
Countrywide shall indemnify and hold harmless the Master Servicer and
its affiliates, and in each case, its officers, directors and agents from and
against any losses, damages, penalties, fines, forfeitures, reasonable legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon a breach by Countrywide or any of its officers, directors, agents or
affiliates of its obligations under Section 6.04 and Section 6.05 or the gross
negligence, bad faith or willful misconduct of Countrywide in connection
therewith. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Master Servicer, then Countrywide 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 Countrywide on the other in connection with a
breach of Countrywide's obligations under Section 6.04 and Section 6.05 or
Countrywide's gross negligence, bad faith or willful misconduct in connection
therewith."
The following Subsection shall be added to Section 10.01:
"(x) failure by Countrywide to duly perform, within the required
time period, its obligations under Section 6.04 and Section 6.05 and the
provision of the back-up Section 302 certificate to the party filing such
Section 302 certificate pursuant to Section 7.01(b) 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
received by Countrywide from the Master Servicer with respect to such Mortgage
Loans;"
The following shall be added as Section 12.12 of the Flow Seller's
Warranties and Servicing Agreement:
"Third Party Beneficiary. For purposes of this Agreement, any Master
Servicer shall be considered a third party beneficiary to this Agreement
entitled to all the rights and benefits accruing to any Master Servicer herein
as if it were a direct party to this Agreement."
10. Any notices or other communications permitted or required under
the Flow Seller's Warranties and Servicing Agreement to be made to TRHT,
Countrywide, the Master Servicer or the Depositor shall be sent as follows:
In the case of TRHT:
Taberna Realty Holdings Trust
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
with a copy to:
Taberna Realty Holdings Trust
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
In the case of Countrywide:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
and
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Countrywide Home Loans Servicing LP
000 Xxxxxxxxxxx Xxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Mortgage Investors, Inc., Series 2005-A9
In the case of the Master Servicer:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Mortgage Investors, Inc., Series 2005-A9
In the case of the Depositor:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MLMI 2005-A9
or to such other address as may hereafter be furnished by a party to the other
parties in accordance with the provisions of the Flow Seller's Warranties and
Servicing Agreement.
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11. Except as modified and expressly amended by this Agreement, the
Flow Seller's Warranties and Servicing Agreement is in all respects ratified and
confirmed, and all terms, provisions and conditions thereof shall be and remain
in full force and effect.
12. This Agreement may be executed in counterparts, each of which when
so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same instrument.
13. No term or provision of this 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.
14. This Agreement shall inure to the benefit of the successors and
assigns of the parties hereto. Any entity into which TRHT or Countrywide may be
merged or consolidated shall without the requirement for any further writing, be
deemed TRHT or Countrywide, respectively hereunder.
15. This 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.
16. In the event that any provision of this Agreement conflicts with
any provision of the Flow Seller's Warranties and Servicing Agreement with
respect to the Assigned Loans, the terms of this Agreement shall control.
17. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York and, except to the extent
preempted by Federal law and the obligations, rights and remedies of the parties
hereunder, shall be determined in accordance with such laws.
18. Any capitalized term used but not defined in this Agreement has
the same meaning as in the Flow Seller's Warranties and Servicing Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
TABERNA REALTY HOLDINGS TRUST
By: _________________________
Name:
Title:
COUNTRYWIDE SERVICING LP
By: _________________________
Name:
Title:
And acknowledged by:
XXXXX FARGO BANK, N.A.
By: _________________________
Name:
Title:
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: _________________________
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
By: _________________________
Name:
Title:
EXHIBIT A
MORTGAGE LOANS
[Intentionally Omitted]
EXHIBIT B
FLOW SELLER'S WARRANTIES AND SERVICING AGREEMENT
[Intentionally Omitted]
