EXHIBIT 99.9
RECONSTITUTED SERVICING AGREEMENT
This is a Reconstituted Servicing Agreement (this "Agreement") made as
of December 1, 2005, between Taberna Realty Holdings Trust ("TRHT"), and
Xxxxx Fargo Bank, N.A. (the "Company") and acknowledged and agreed by Xxxxxxx
Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor"), and Xxxxx
Fargo Bank, N.A., as master servicer.
Whereas Xxxxxxx Xxxxx Mortgage Lending, Inc. (the "Assignor") purchased
certain mortgage loans listed on Attachment 1 attached hereto (the "Mortgage
Loans") from the Company pursuant to that certain Mortgage Loan Purchase
Agreement, dated as of October 1, 2005, by and between the Company and the
Assignor; and
Whereas the Company agreed to service the Mortgage Loans pursuant to the
Seller's Warranties and Servicing Agreement dated as of November 1, 2005 (the
"Warranties and Servicing Agreement"), by and between the Company and Assignor;
Whereas the Assignor assigned all of its right, title and interest in, to
and under the Mortgage Loans and the Warranties and Servicing Agreement to TRHT
pursuant to an assignment, assumption and recognition agreement, dated as of
November 1, 2005, by and between the Assignor and TRHT; and
Whereas TRHT assigned all of its right, title and interest in, to and
under the Mortgage Loans and the Warranties and Servicing Agreement to the
Depositor pursuant to a mortgage loan purchase agreement, dated as of December
1, 2005, by and between TRHT and the Depositor.
Now, therefore, in consideration of the mutual promises and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that the
Mortgage Loans now serviced by the Company pursuant to the Warranties and
Servicing Agreement shall be subject to the terms of this Agreement. Capitalized
terms used herein but not otherwise defined shall have the meanings assigned to
them in the Warranties and Servicing Agreement.
1. TRHT warrants and represents to and covenants with Company as of the
date hereof:
(a) Attached hereto as Exhibit B is a true and accurate copy of the
Warranties and Servicing Agreement, which agreement is in full force and effect
as of the date hereof and, except as set forth herein, 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 the Servicer, 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.
2. Company warrants and represents to and covenants with TRHT as of the
date hereof:
a. Attached hereto as Attachment 2 is a true and accurate copy of the
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 in any respect, nor has any notice of termination been given
thereunder;
b. The Company is a national banking association duly organized, validly
existing and in good standing under the laws of the United States, and has all
requisite power and authority to service the Mortgage Loans and otherwise to
perform its obligations under the Warranties and Servicing Agreement;
c. The Company has full 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 the Company's business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Company's charter or by-laws or any legal restriction, or any
material agreement or instrument to which the 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 the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement and the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary action on part of the Company. This Agreement has
been duly executed and delivered by the Company, and, upon the due
authorization, execution and delivery by Assignor and TRHT, will constitute the
valid and legally binding obligation of Company, enforceable against the Company
in accordance with its terms except as enforceability may be limited by the
effect of insolvency, liquidation, conservatorship and other similar laws
administered by the Federal Deposit Insurance Corporation affecting the
enforcement of contract obligations of insured banks and subject to the
application of the rules of equity;
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 the Company in connection with the execution, delivery or performance by the
Company of this Agreement, or the consummation by it of the transactions
contemplated hereby; and
e. Company shall establish a Custodial Account and an Escrow Account under
the Warranties and Servicing Agreement in favor of TRHT with respect to the
Mortgage Loans separate from the Custodial Account and the Escrow Account
previously established under the Warranties and Servicing Agreement in favor of
Assignor.
3. The Company hereby acknowledges that from and after the date hereof,
the Mortgage Loans will be subject to the Sale and Servicing Agreement (the
"Sale and Servicing Agreement"), dated as of December 22, 2005, by and among
TRHT, Wachovia Bank, National Association (the "Indenture Trustee"), Xxxxxxx
Xxxxx Mortgage Investors, Inc., Xxxxxxx Xxxxx Mortgage Investors Trust, Series
2005-A9 and Xxxxx Fargo Bank, N.A., as master servicer and securities
administrator (the "Master Servicer"). Pursuant to the Sale and Servicing
Agreement, the Master Servicer has the right to monitor the Company's
performance of its servicing obligations under the Warranties and Servicing
Agreement (as modified herein). Such right will include, without limitation, the
right to terminate the Company under the Warranties and Servicing 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 Warranties and
Servicing Agreement, the right to receive all monthly reports and other data
required to be delivered by the Company under the Warranties and Servicing
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. In connection therewith,
Company hereby agrees that all remittances required to be made with respect to
the Mortgage Loans pursuant to the Warranties and Servicing 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: Xxxxxxx Xxxxx Mortgage Investors
Trust, Series 2005-A9, acct#17216400
and the Company shall deliver all reports required to be delivered under the
Warranties and Servicing Agreement to the Master Servicer at:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager MLMI 2005-A9
It is the intention of Assignor, Company and TRHT that this
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 Warranties and Servicing Agreement which amendment, modification, waiver
or other alteration would in any way affect the Mortgage Loans without the prior
written consent of TRHT.
4. It is expressly understood and agreed by the parties hereto that (a)
this Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as owner trustee of Xxxxxxx Xxxxx Mortgage
Investors Trust, Series 2005-A9 (the "Trust"), in the exercise of the powers and
authority conferred and vested in it under the Trust Agreement, dated as of
December 22, 2005, by and among Wilmington Trust Company, the Assignor and the
Master Servicer, (b) each of the representations, undertakings and agreements
herein made on the part of the Trust is made and intended not as a personal
representation, undertaking and agreement by Wilmington Trust Company but is
made and intended for the purpose of binding only the Trust and (c) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Agreement.
5. In the event that any Mortgage Loan is sold to a third party or
purchased by the holder of the Trust Certificates, the Company shall continue to
service the Mortgage Loan pursuant to the Warranties and Servicing Agreement.
Modification of the Warranties and Servicing Agreement
6. The following definitions are added to Article I of the Warranties and
Servicing Agreement:
Certificateholder: The beneficial holder of Trust Certificates issued
pursuant to the Trust Agreement, dated as of December 22, 2005, among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Wilmington Trust
Company, as owner trustee and Xxxxx Fargo Bank, N.A., not in its
individual capacity, but solely in its capacity as securities
administrator, certificate registrar and certificate paying agent.
Indenture: The indenture, dated as of December 22, 2005, among Xxxxxxx
Xxxxx Mortgage Investors Trust, Series 2005-A9, as issuer, Xxxxx Fargo
Bank, N.A., as securities administrator and Wachovia Bank, National
Association as indenture trustee.
Master Servicer: Xxxxx Fargo Bank, N.A., or its successors in interest.
Nonrecoverable Advance: Any Monthly Advance previously made by the Company
pursuant to Section 5.03 or any Servicing Advance which, in the good faith
judgment of the Company, may not be ultimately recoverable by the Company
from Liquidation Proceeds or otherwise.
7. The definition of "Business Day" in Article I of the Warranties and
Servicing Agreement 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 banking and savings and loan institutions in the State of
California, the State of Maryland, the State of Minnesota or the State of
New York are authorized or obligated by law or executive order to be
closed.
8. The Assignor, TRHT and Company hereby amend Section 4.02 of the
Warranties and Servicing Agreement by deleting the second sentence of the first
paragraph in its entirety and replacing it with the following:
"In the event that any payment due under any Mortgage Loan is not
postponed pursuant to Section 4.01 and remains delinquent for a period of
ninety (90) days or any other default continues for a period of ninety
(90) days beyond the expiration of any grace or cure period, the Company
shall provide written notice to the Master Servicer in the event the
Company intends to proceed with foreclosure. The Company, on behalf of the
Purchaser, may also, in its discretion, as an alternative to foreclosure,
sell defaulted Mortgage Loans at fair market value to third-parties, if
the Company reasonably believes that such sale would maximize proceeds to
the Purchaser (on a present value basis) with respect to each such
Mortgage Loan."
9. The Assignor, TRHT and Company hereby amend Section 4.02 of the
Warranties and Servicing 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 Company that the
Certificateholder is no longer entitled to the rights described in this
Section 4.02:
(a) The Company 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 Certificateholder,
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 Company determines not to proceed with
foreclosure proceedings with respect to a Mortgage Loan that becomes 90
days' or more delinquent and the Company has determined that it is unable
to collect payments due under such Mortgage Loan in accordance with
Accepted Servicing Practices, the Company 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 Company shall not be permitted to proceed with any such action
unless the Certificateholder, either directly or through the Master
Servicer, does not, within five Business Days following such notice,
affirmatively object to the Company taking such action.
10. The following are added as Subsections 4.05(x) and (xi) of the
Warranties and Servicing Agreement:
"(x) to reimburse itself for any Nonrecoverable Advances;
and
(xi) to make payments to the Certificateholder in the amounts
and in the manner provided for in Section 4.02."
11. TRHT and the Company hereby amend Section 5.01 of the Warranties and
Servicing Agreement by deleting the second paragraph in its entirety and
replacing it with the following:
With respect to any remittance received by the Purchaser after the
Business Day following the Business Day on which such payment was due, the
Company shall pay to the Purchaser interest on any such late payment at an
annual rate equal to the Prime 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
deposited in the Custodial Account by the Company on the date such late
payment is made and shall cover the period commencing with the day
following such Business Day and ending with the Business Day on which such
payment is made, both inclusive. Such interest shall be remitted along
with the distribution payable on the next succeeding Remittance Date. The
payment by the Company of any such interest shall not be deemed an
extension of time for payment or a waiver of any Event of Default by the
Company.
12. Section 6.04 of the Warranties and Servicing Agreement shall be
modified by adding the phrase "in a form acceptable for filing with the
Securities and Exchange Commission as an exhibit to a Form 10-K" after the
phrase "an Officer's Certificate".
13. Section 6.05 of the Warranties and Servicing Agreement shall be
modified by adding the phrase "in a form acceptable for filing with the
Securities and Exchange Commission as an exhibit to a Form 10-K" after the
phrase "to furnish a statement to each Purchaser".
14. The following is added as the second paragraph of Section 6.07 of the
Warranties and Servicing Agreement:
Notwithstanding anything in this Agreement to the contrary, the
Company (a) shall not permit any modification with respect to any Mortgage
Loan that would change the Mortgage Interest Rate and (b) shall not
(unless the Mortgagor is in default with respect to the Mortgage Loan or
such default is, in the judgment of the Company, reasonably foreseeable)
make or permit any modification, waiver or amendment of any term of any
Mortgage Loan that would both effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or Treasury regulations
promulgated thereunder).
15. Subsection 10.01(ix) of the Warranties and Servicing Agreement is
deleted in its entirety and replaced with the following:
(ix) failure by the Company to duly perform, within the required
time period, its obligations under Sections 6.04, 6.05, or 9.01(c), 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 Company by any party to this Agreement or by any master
servicer responsible for master servicing the Mortgage Loans pursuant to a
securitization of such Mortgage Loans.
16. Section 12.03 of the Warranties and Servicing Agreement is deleted in
its entirety and replaced with the following:
Section 12.03 Governing Law.
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.
17. The following shall be added as Section 12.15 of the Warranties and
Servicing Agreement:
Section 12.15 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.
Miscellaneous
18. All demands, notices and communications related to the Mortgage Loans,
the Warranties and Servicing Agreement and this 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,
Xxxxx Fargo Bank, N.A.
1 Home Campus
MAC X0000-000
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxxx
With a copy to:
Xxxxx Fargo Bank, N.A.
1 Home Campus
Xxx Xxxxxx, Xxxx 00000-0000
Attention: General Counsel - MAC X2401-06T
b. 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
c. 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
d. In the case of Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Xxxxxxx Xxxxx Mortgage Investors, Inc.
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MLMI 2005-A9
19. 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.
20. This Agreement shall inure to the benefit of the successors and
assigns of the parties hereto. Any entity into which Assignor, TRHT or Company
may be merged or consolidated shall without the requirement for any further
writing, be deemed Assignor, TRHT or Company, respectively hereunder.
21. This Agreement shall survive the conveyance of the Mortgage Loans as
contemplated in this Agreement.
22. 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.
23. In the event that any provision of this Agreement conflicts with any
provision of the Warranties and Servicing Agreement with respect to the Mortgage
Loans, the terms of this Agreement shall control.
24. Any new loan number assigned to an Mortgage Loan by TRHT shall be
provided to the Company at the following address: Xxxxx Fargo Bank, N.A., 1 Home
Campus, MAC X0000-000, Xxx Xxxxxx, Xxxx 00000-0000 Attention: Xxxx X. Xxxxx. In
addition, if TRHT has changed its document custodian from the previous
custodian, such new custodian's name, address and contact information shall be
provided to the Company at the aforementioned address.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
TABERNA REALTY HOLDINGS TRUST
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
XXXXX FARGO BANK, N.A.
Company
By:
------------------------------
Name:
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Title:
------------------------------
ACKNOWLEDGED AND AGREED:
XXXXX FARGO BANK, N.A.
Master Servicer
By:
------------------------------
Name:
------------------------------
Title:
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XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Assignor
By:
------------------------------
Name:
------------------------------
Title:
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ATTACHMENT l
MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
ATTACHMENT 2
SELLER'S WARRANTIES AND SERVICING AGREEMENT
See Exhibit 99.10
ATTACHMENT 3
LIST OF APPRAISAL FIRMS
[Intentionally Omitted]
