ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment"),
dated as of March 1, 2004, is entered into by and among XXXXXXXXX MORTGAGE
SECURITIES TRUST 0000-0 (xxx "Xxxxxxxx"), XXXXXXXXX MORTGAGE HOME LOANS, INC., a
Delaware corporation (the "Assignor"), XXXXXX'X GATE RESIDENTIAL MORTGAGE TRUST
(formerly known as Cendant Residential Mortgage Trust, and together with,
CENDANT MORTGAGE CORPORATION, the "Sellers" and individually, each a "Seller"),
and CENDANT MORTGAGE CORPORATION, as servicer (the "Servicer"), and acknowledged
by XXXXX FARGO BANK, N.A., as master servicer, or any successor acting in the
capacity of master servicer (the "Master Servicer") and DEUTSCHE BANK NATIONAL
TRUST COMPANY, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Assignor, the Sellers and the Servicer have entered into a
certain Mortgage Loan Flow Purchase, Sale & Servicing Agreement, dated as of
December 23, 2002 (the "Purchase Agreement"), pursuant to which the Assignor has
acquired certain Mortgage Loans from the Sellers pursuant to the terms of the
Purchase Agreement and the Servicer has agreed to service such Mortgage Loans;
and
WHEREAS, the Assignor has purchased under the Purchase Agreement certain
Mortgage Loans secured by collateral in addition to the real property securing
such Mortgage Loans (the "Additional Collateral Mortgage Loans"); and
WHEREAS, the Assignor, the Sellers and Servicer have entered into a certain
Additional Collateral Assignment and Servicing Agreement, dated as of December
23, 2002 (the "Additional Collateral Agreement"), pursuant to which the Servicer
has agreed to administer and monitor the Additional Collateral Servicer's (as
such term is defined in Section 1 of the Additional Collateral Agreement)
obligations to administer and service the Additional Collateral Mortgage Loans;
and
WHEREAS, the Assignee has agreed, on the terms and conditions contained
herein, to purchase from the Assignor the Mortgage Loans and the Additional
Collateral Mortgage Loans (collectively, the "Specified Mortgage Loans") which
are subject to the provisions of the Purchase Agreement and/or the Additional
Collateral Agreement and are listed on the mortgage loan schedule attached as
SCHEDULE I hereto (the "Specified Mortgage Loan Schedule");
WHEREAS, the Assignor desires that the Servicer continue to service the
Specified Mortgage Loans, and the Servicer has agreed to do so, subject to the
conditions set forth herein;
WHEREAS, the Master Servicer shall be obligated, among other things, to
supervise the servicing of the Specified Mortgage Loans on behalf of the
Trustee, and shall have the right, under certain circumstances, to terminate the
rights and obligations of the Servicer upon the occurrence and continuance of an
Event of Default, as provided in Section 10.01 of the Purchase Agreement, by the
Servicer under this Assignment;
WHEREAS, the Assignor and the Servicer desire that the provisions of the
Purchase Agreement and the Additional Collateral Agreement shall apply to the
Specified Mortgage Loans, but only to the extent provided herein.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration (the receipt and sufficiency of which
are hereby acknowledged), the parties agree as follows:
1. ASSIGNMENT AND ASSUMPTION.
a. On and of the date hereof, the Assignor hereby sells, assigns and
transfers to the Assignee all of its right, title and interest in the Specified
Mortgage Loans and all rights related thereto as provided under the Purchase
Agreement and the Additional Collateral Agreement to the extent relating to the
Specified Mortgage Loans, the Assignee hereby accepts such assignment from the
Assignor, and the Seller hereby acknowledges such assignment and assumption.
b. On and as of the date hereof, the Assignor represents and warrants to
the Assignee that the Assignor has not taken any action that would serve to
impair or encumber the Assignee's ownership interests in the Specified Mortgage
Loans since the date of the Assignor's acquisition of the Specified Mortgage
Loans.
2. RECOGNITION OF ASSIGNEE. From and after the date hereof, both the
Assignor and the Seller shall note the transfer of the Specified Mortgage Loans
to the Assignee in their respective books and records and shall recognize the
Assignee as the owner of the Specified Mortgage Loans, and the Servicer shall
service the Specified Mortgage Loans for the benefit of the Assignee pursuant to
the Purchase Agreement and Additional Collateral Agreement, the terms of which
are incorporated herein by reference. It is the intention of the Seller, the
Servicer, the Assignee and the Assignor that this Assignment shall be binding
upon and inure to the benefit of the Assignee and the Assignor and their
successors and assigns.
3. REPRESENTATIONS AND WARRANTIES.
a. The Assignee represents and warrants that it is a sophisticated investor
able to evaluate the risks and merits of the transactions contemplated hereby,
and that it has not relied in connection therewith upon any statements or
representations of the Seller or the Assignor other than those contained in the
Purchase Agreement, the Additional Collateral Agreement or this Assignment.
b. Each of the parties hereto represents and warrants that it is duly and
legally authorized to enter into this Assignment.
c. Each of the parties hereto represents and warrants that this Assignment
has been duly authorized, executed and delivered by it and (assuming due
authorization, execution and delivery thereof by each of the other parties
hereto) constitutes its legal, valid and binding obligation, enforceable against
it in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
4. CONTINUING EFFECT. Except as contemplated herein and in Exhibits A and B
attached hereto, the Purchase Agreement and the Additional Collateral Agreement,
respectively, shall remain in full force and effect in accordance with their
terms. The Servicer agrees, with respect to the Specified Mortgage Loans, to
perform and observe the duties, responsibilities and obligations that are to be
performed and observed under the provisions of the Purchase Agreement and the
Additional Collateral Agreement, except as otherwise provided herein and on
Exhibits A and B, respectively, and that the provisions of the Purchase
Agreement and the Additional Collateral Agreement, as so modified, are and shall
be a part of this Assignment to the same extent as if set forth herein in full.
5. MASTER SERVICING; TERMINATION OF SERVICER. The Servicer, including any
successor servicer hereunder, shall be subject to the supervision of the Master
Servicer, which Master Servicer shall be obligated to ensure that the Servicer
services the Mortgage Loans in accordance with the provisions of this
Assignment. The Master Servicer, acting on behalf of the Assignee, the owner of
the Mortgage Loans, shall have the same rights as the Purchaser under the
Purchase Agreement to enforce the obligations of the Servicer under the Purchase
Agreement and the term "Purchaser" as used in the Purchase Agreement in
connection with any rights of the Purchaser shall refer to the Master Servicer,
acting on behalf of the Assignee, except as otherwise specified in Exhibits A
and B, hereto, and provided that any reference in the Purchase Agreement to "the
Purchaser's expense" (or words to like effect) shall be deemed to be expenses of
the Assignee and, if it relates to reimbursement of expenses incurred by the
Servicer shall be recoverable by the Servicer from the Collection Account. The
Master Servicer shall be entitled to terminate the rights and obligations of the
Servicer under this Assignment upon an Event of Default, as provided in Section
10.01 of the Purchase Agreement. Notwithstanding anything herein to the
contrary, in no event shall the Master Servicer assume any of the obligations of
the Purchaser under the Purchase Agreement or the Additional Collateral
Agreement. The Trustee, acting on behalf of the Assignee, the owner of the
Mortgage Loans, shall have the same rights as the Purchaser under the Additional
Collateral Agreement to enforce the obligations of the Servicer under the
Additional Collateral Agreement and the term "Purchaser" as used in the
Additional Collateral Agreement in connection with any rights of the Purchaser
shall refer to the Trustee, acting on behalf of the Assignee.
6. REPRESENTATIONS. The Servicer shall not be obligated or required to make
any further representations and warranties regarding the characteristics of the
Specified Mortgage Loans. Notwithstanding anything to the contrary, the
representations set forth in Section 3.03 of the Purchase Agreement and Section
2 of the Additional Collateral Agreement shall remain in full force and effect
as of the date of the Purchase Agreement and the Additional Collateral
Agreement, respectively. Further, the representations made in Section 3.01 of
the Purchase Agreement shall be deemed to be made as of the date of this
Assignment.
7. GOVERNING LAW. This Assignment and the rights and obligations hereunder
shall be governed by and construed in accordance with the internal laws of the
State of New York.
8. NOTICES. All notices, consents, certificates and other communications
required to be delivered between or among the parties hereto (including any
third party beneficiary thereof) or required to be provided to the Trustee shall
be in writing, may be in the form of facsimile or electronic transmission, and
shall be deemed received or given when mailed first-class mail, postage prepaid,
addressed to each other party at its address specified below or, if sent by
facsimile or electronic mail, when facsimile or electronic confirmation of
receipt by the recipient is received by the sender of such notice. Each party
may designate to the other parties in writing, from time to time, other
addresses to which notices and communications hereunder shall be sent. All
notices and other written information required to be delivered to the Master
Servicer under this Assignment shall be delivered to the Master Servicer at the
following address:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxxx Xxxxxxxxxx, Xxxxxxxxx 0000-0
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Assignment shall be made to the following wire account:
Xxxxx Fargo Bank, N.A.
San Francisco, CA
ABA# 000-000-000
Account No. 0000000000
Account Name: Corporate Trust Clearing
FFC: 18155100, Xxxxxxxxx 2004-1
All notices and other written information required to be delivered to the
Trustee hereunder shall be delivered to the Trustee at the following address:
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxxxx 2004-1
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices and other written information required to be delivered to the
Assignor hereunder shall be delivered to it at the following address:
Xxxxxxxxx Mortgage Home Loans, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxx (Xxxxxxxxx 2004-1)
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices and written information required to be delivered to the
Servicer hereunder shall be delivered to the Servicer at the following address:
Cendant Mortgage Corporation
0000 Xxxxxxxxxx Xxxx
Xx. Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Vice President, Secondary Marketing
Facsimile: (000)-000-0000
9. COUNTERPARTS. This Assignment 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.
10. DEFINITIONS. Any capitalized term used but not defined in this
Assignment, including Exhibits A and B hereto, shall have the same meaning
ascribed to such term in the Purchase Agreement and the Collateral Assignment
Agreement, respectively, as amended hereby.
11. LIMITATION OF LIABILITY. It is expressly understood and agreed by the
parties hereto that (a) this Assignment is executed and delivered by Deutsche
Bank National Trust Company, not individually or personally but solely as the
Trustee of the Assignee, in the exercise of the powers and authority conferred
and vested in it, (b) the representations, warranties, covenants, undertakings
and agreements herein made on the part of the Trustee are made and intended not
as personal representations, undertakings and agreements by Deutsche Bank
National Trust Company but are made and intended for the purpose of binding only
the Assignee, (c) nothing herein contained shall be construed as creating any
liability on Deutsche Bank National Trust Company, individually or personally,
to perform any covenant either expressly or implied contained herein, all such
liability, if any, being expressly waived by the parties who are signatories to
this Assignment and by any person claiming by, through or under such parties and
(d) under no circumstances shall Deutsche Bank National Trust Company be
personally liable for payment of any indemnity, indebtedness, fees or expenses
of the Assignee or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Assignee under
this Assignment.
[Assignment continues with signature page]
IN WITNESS WHEREOF, the parties hereto have executed this Assignment the day and
year first above written.
ASSIGNOR:
XXXXXXXXX MORTGAGE HOME LOANS, INC.
By: /S/ XXXXXXX X. XXXXX
-------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
SELLER:
XXXXXX'X GATE RESIDENTIAL MORTGAGE TRUST (formerly
known as Cendant Residential Mortgage Trust)
By: /S/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CENDANT MORTGAGE CORPORATION
By: /S/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
ASSIGNEE:
XXXXXXXXX MORTGAGE SECURITIES TRUST 2004-1
BY: DEUTSCHE BANK NATIONAL TRUST COMPANY, not in
its individual capacity, but solely as Trustee on
behalf of Assignee
By: /S/ XXXXXX XXXXXXX
------------------
Name: XXXXXX XXXXXXX
--------------
Title: ASSOCIATE
---------
SERVICER:
CENDANT MORTGAGE CORPORATION
By: /S/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
ACKNOWLEDGED BY:
MASTER SERVICER:
XXXXX FARGO BANK, N.A.
By: /S/ XXX XXXXX
-------------
Name: XXX XXXXX
---------
Title: ASSOCIATE
---------
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee
on behalf of Assignee
By: /S/ XXXXXX XXXXXXX
Name: XXXXXX XXXXXXX
Title: ASSOCIATE
EXHIBIT A
MODIFICATIONS TO THE PURCHASE AGREEMENT
1. Unless otherwise specified herein, any provisions of the Purchase
Agreement, including definitions relating to "Pass-Through Transfers" and
"Funding Date" shall be disregarded for the purposes of this Assignment.
Further, the following provisions of the Purchase Agreement shall be
inapplicable to this Assignment: ARTICLE II (Sale and Conveyance of Mortgage
Loans; Possession of Mortgage Files; Books and Records; Delivery of Mortgage
Documents), Section 3.05 (Certain Covenants of each Seller and the Servicer),
Section 4.02 (Conditions Precedent to Funding), Section 5.18 (Designation of a
Master Servicer), Section 8.02 (Financial Statements) and Section 12.12
(Intention of the Seller).
2. The definition of "Collection Account" in Section 1.01 is hereby amended
as follows:
"Collection Account": The separate trust account or accounts created and
maintained pursuant to SECTION 5.04 which shall be entitled "Cendant
Mortgage Corporation, as Servicer, in trust for the Trustee on behalf of
the Assignee."
3. The definition of "Cut-off Date" in Section 1.01 is hereby amended as
follows:
"Cut-off Date": March 1, 2004.
4. The definition of "Due Period" in Section 1.01 is hereby amended as
follows:
"Due Period": With respect to each Remittance Date, the period commencing
on the second day of the month preceding the month of such Remittance Date
and ending on the first day of the month of such Remittance Date.
5. The definition of "Escrow Account" in Section 1.01 is hereby amended as
follows:
"Escrow Account": The separate trust account or accounts created and
maintained pursuant to SECTION 5.06 which shall be entitled "Cendant
Mortgage Corporation, as Servicer, in trust for the Trustee on behalf of
the Assignee."
6. The definition of "Liquidation Proceeds" in Section 1.01 is hereby
amended as follows:
"Liquidation Proceeds": With respect to any Mortgage Loan, the amount
(other than amounts received in respect of the rental of any REO Property
prior to REO Disposition) received by the Servicer as proceeds from the
liquidation of such Mortgage Loan, as determined in accordance with the
applicable provisions of this Agreement; PROVIDED that with respect to any
Mortgage Loan or REO Property and, if applicable, any related marketable
securities or other assets required to be provided as additional collateral
for a Mortgage Loan, "Liquidation Proceeds" shall also include amounts
realized in connection with the repurchase, substitution or sale thereof.
7. The definition of "Qualified Substitute Mortgage Loan" in Section 1.01
is hereby amended by the addition of the following language at the end of the
first sentence thereof:
and (xiv) qualify as a Substitute Mortgage Loan under the Trust Pooling and
Servicing Agreement, dated as of March 1, 2004, by and among the Trustee,
the Master Servicer, Xxxxx Fargo Bank, N.A., as securities administrator,
Structured Asset Mortgage Investments II Inc., as depositor, Deutsche Bank
National Trust Company Delaware, as Delaware trustee, and the Assignor.
8. The definition of "Rating Agency" in Section 1.01 is hereby amended as
follows:
S&P and Xxxxx'x Investors Services, Inc., and any of their respective
successors thereto. If S&P, Xxxxx'x Investors Services, Inc. or their
respective successors shall no longer be in existence, "Rating Agency"
shall include such nationally recognized statistical rating agency, or
other comparable Person, as shall have been notified to the Servicer by the
Master Servicer.
9. Section 3.01 (Representations and Warranties of each Seller) is hereby
amended by:
a. replacing the first paragraph with the following phrase "Each Seller, as
to itself, represents, warrants and covenants to the Trustee and the Assignee
that as of each Funding Date or as of such date specifically provided herein:".
b. Notwithstanding Section 5 of this Assignment, the use of the word
"Purchaser" in (1) through (16) shall mean "Assignor."
10. Section 3.02 (Representations and Warranties of the Servicer) is hereby
amended by:
a. replacing the first paragraph with the following phrase "The Servicer
represents, warrants and covenants to the Trustee and the Assignee that as of
the Funding Date or as of such date specifically provided herein:".
b. Notwithstanding Section 5 of this Assignment, the use of the word
"Purchaser" in (8) shall mean "Assignor."
11. Section 3.03 (Representations and Warranties as to Individual Mortgage
Loans) is hereby amended by:
a. replacing the first sentence of the first paragraph with the following
phrase "With respect to each Mortgage Loan, the applicable Seller hereby makes
the following representations and warranties to the Trustee and the Assignee."
b. Notwithstanding Section 5 of this Assignment, the use of the word
"Purchaser" in (1) through (65) shall mean "Assignor" except that it shall be
replaced with the word "Assignee" in (29).
12. Section 3.04 (Repurchase and Substitution) is hereby amended by:
a. replacing the first and second uses of the word "Purchaser" in the first
sentence of the first paragraph with the word "Assignee".
b. replacing the first use of the word "Purchaser" in the second paragraph
with the words "Master Servicer, the Trustee or the Assignee".
c. replacing the second and third uses of the word "Purchaser" in the
second paragraph with the word "Assignee".
d. replacing the first use of the word "Purchaser" in the first sentence of
the third paragraph with the words "Master Servicer, the Trustee or the
Assignee".
e. replacing the second and third uses of the word "Purchaser" in the first
sentence of the third paragraph with the word "Assignee".
f. replacing all uses of the word "Purchaser" in the second, third and
fourth sentences of the third paragraph with the words "Master Servicer, the
Trustee or the Assignee".
g. replacing the use of the word "Purchaser" in the penultimate sentence of
the third paragraph with the word "Assignee".
h. replacing the first use of the word "Purchaser" in the last sentence of
the third paragraph with the words "Master Servicer, the Trustee or the
Assignee".
i. replacing the second use of the word "Purchaser's" in the last sentence
of the third paragraph with the word "Collection".
j. replacing the last use of the word "Purchaser" in the last sentence of
the third paragraph with the words "Master Servicer, the Trustee on behalf of
the Assignee and the Assignee".
k. replacing the word "Purchaser" in the fifth paragraph with the words
"the Assignee".
l. replacing the first use of the word "Purchaser's" in the last sentence
of the sixth paragraph with the word "Collection".
m. replacing the second use of the word "Purchaser" in the last sentence of
the sixth paragraph with the words "Master Servicer, the Trustee on behalf of
the Assignee and the Assignee".
n. replacing the first use of the word "Purchaser's" in the first sentence
of the seventh paragraph with the word "Collection".
o. replacing the second use of the word "Purchaser" in the first sentence
of the seventh paragraph with the words "Master Servicer, the Trustee on behalf
of the Assignee and the Assignee".
p. replacing the word "Purchaser" in the second sentence of the seventh
paragraph with the words "Master Servicer, the Trustee and the Assignee" in both
instances.
q. replacing the first use of the word "Purchaser" in the eighth paragraph
with the word "Assignee".
r. replacing the second, third and fourth uses of the word "Purchaser" in
the eighth paragraph with the words "Master Servicer, the Trustee and the
Assignee".
s. replacing the last use of the word "Purchaser" in the eighth paragraph
with the word "Assignee".
13. Section 4.01 (Representations and Warranties) is hereby amended,
notwithstanding Section 5 of this Assignment, by replacing the use of the word
"Purchaser" in the first sentence of such section and in clauses (1) through
(15) with the word "Assignee".
14. Section 5.01 (Cendant Mortgage to Act as Servicer; Servicing Standards;
Additional Documents; Consent of the Purchaser) is hereby amended by:
a. replacing all uses of the word "Purchaser" in paragraph (1) and in the
first sentence of paragraph (2) with the word "Assignee".
b. replacing the word "Purchaser" in paragraph (3)(a) with the word
"Assignee".
c. replacing the fourth use of the word "Purchaser" in paragraph (3)(c)
with the word "Assignee".
d. deleting paragraph 3(h) in its entirety.
15. Section 5.05 (Permitted Withdrawals from the Collection Account) is
hereby amended by:
a. deleting paragraph (4) and replacing it with the following:
to reimburse itself for each unreimbursed Servicing Advance and
Monthly Advances provided, that with respect to any Mortgage Loan the
Servicer's right to reimbursement shall be limited to the funds
collected by the Servicer from the related Mortgagor or any other
Person, including, but not limited to, Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds, and with respect to REO
Property, funds received as rental or similar income. The Servicer's
right to reimbursement set forth in the preceding sentence shall be
prior to the rights of the Assignee; provided however, that in the
event that the Servicer determines in good faith that any unreimbursed
Servicing Advance or Monthly Advance will not be recoverable from
amounts representing late recoveries of payments of principal or
interest respecting the particular Mortgage Loan as to which such
Servicing Advance or Monthly Advance was made or from Liquidation
Proceeds or Insurance Proceeds with respect to such Mortgage Loan, the
Servicer may reimburse itself for such amounts from the Collection
Account, it being understood, in the case of any such reimbursement,
that the Servicer's right thereto shall be prior to the rights of the
Assignee;
b. replacing the word "Purchaser" in paragraph (7) with the words "Trustee
on behalf of the Assignee".
16. Section 5.08 (Payment of Taxes, Insurance and Other Charges;
Maintenance of Primary Insurance Policies; Collections Thereunder) is hereby
amended by replacing the word "Purchaser" in the third paragraph with the words
"Trustee on behalf of the Assignee".
17. Section 5.11 (Maintenance of Mortgage Impairment Insurance Policy) is
hereby amended by replacing the word "Purchaser" in the second sentence with the
words "Trustee and the Assignee".
18. Section 5.12 (Fidelity Bond; Errors and Omissions Insurance) is hereby
amended by replacing the words "on or before the Funding Date" in the last
sentence with the words "upon request".
19. Section 5.13 (Management of REO Properties) is hereby amended by:
a. deleting the language "Purchaser or the Person (which may be the
Servicer for the benefit of the Purchaser) designated by the Purchaser" in the
first sentence of the first paragraph and replacing it with the language
"Servicer as nominee for the Assignee".
b. deleting the words "the Purchaser notifies" and the words "that the
Purchaser or such Person" in the fourth line of the first paragraph.
c. deleting the words "Purchaser or" and the words "upon notification from
the Purchaser" in the eighth and ninth lines of the first paragraph.
d. adding the following paragraph as the second paragraph of such section:
Notwithstanding anything to the contrary contained in this Section
5.13, in connection with a foreclosure or acceptance of a deed in lieu
of foreclosure, in the event the Servicer has reasonable cause to
believe that a Mortgaged Property is contaminated by hazardous or
toxic substances or wastes, or if the Trustee or the Master Servicer
otherwise requests, an environmental inspection or review of such
Mortgaged Property to be conducted by a qualified inspector shall be
arranged by the Servicer and paid for by the Assignee. Upon completion
of the inspection, the Servicer shall provide the Trustee and the
Master Servicer with a written report of such environmental
inspection. In the event that the environmental inspection report
indicates that the Mortgaged Property is contaminated by hazardous or
toxic substances or wastes, the Servicer shall not proceed with
foreclosure or acceptance of a deed in lieu of foreclosure. In the
event that the environmental inspection report is inconclusive as to
the whether or not the Mortgaged Property is contaminated by hazardous
or toxic substances or wastes, the Servicer shall not proceed with
foreclosure or acceptance of a deed in lieu of foreclosure. The
Servicer shall be reimbursed for all Servicing Advances made pursuant
to this paragraph with respect to the related Mortgaged Property from
the Collection Account.
20. Section 5.14 (Sale of Specially Serviced Mortgage Loans and REO
Properties) is hereby amended by (i) replacing the word "Purchaser" in the first
sentence of the first paragraph with the word "Assignee"; (ii) replacing the
last use of the word "Purchaser" in the fourth sentence of the first paragraph
with the word "Assignee"; and (iii) replacing the word "Purchaser" in the first
sentence of the second paragraph with the word "Assignee".
21. Section 5.15 (Realization Upon Specially Serviced Mortgage Loans and
REO Properties) is hereby amended by (i) replacing the word "Purchaser" in the
last sentence of the second paragraph with the word "Assignee"; (ii) replacing
all uses of the word "Purchaser" in the third paragraph with the word
"Assignee"; (iii) replacing the first use of the word "Purchaser" in the first
sentence of the sixth paragraph with the word "Assignee"; and (iv) replacing the
second use of the word "Purchaser" in the seventh paragraph with the word
"Assignee".
22. Section 6.01 (Remittances) is hereby amended by replacing the word
"Payoff" in the third line of subsection (1) with the words "prepayment in full
or in part".
23. Section 6.03 (Monthly Advances by the Servicer) is hereby amended by
adding the words ", REO Disposition Proceeds" after the words "Liquidation
Proceeds" in the fourth line of subsection (2) thereof.
24. Section 9.01 (Indemnification; Third Party Claims) is hereby amended by
replacing the word "Purchaser" with the words "Trustee, the Master Servicer and
the Assignee" in each instance.
25. Section 9.03 (Limitation on Liability of the Seller and Others) is
hereby amended by replacing the first use of the word "Purchaser" in the first
sentence of the first paragraph with the words "Master Servicer, the Trustee or
the Assignee".
26. Section 10.01 (Events of Default) is hereby amended by replacing the
second use of the word "Purchaser" in the paragraph following (9) with the words
"Master Servicer or the Trustee".
27. Section 12.01 (Successor to the Servicer) is hereby amended by:
a. adding the following sentences after the first sentence of the first
paragraph:
Any successor to the Servicer shall be subject to the approval of the
Master Servicer, which approval shall not be unreasonably withheld,
and each Rating Agency, as evidenced by a letter from such Rating
Agency delivered to the Trustee that the transfer of servicing will
not result in a qualification, withdrawal or downgrade of the
then-current rating of any of the Certificates, as defined in the
Pooling and Servicing Agreement. In connection with such appointment
and assumption, the Master Servicer may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it
and such successor shall agree; provided however, that no such
compensation shall be in excess of that permitted the Servicer under
this Agreement.
b. replacing the word "Purchaser" in the penultimate sentence of the first
paragraph with the word "Assignee".
c. replacing the word "Purchaser" in the last sentence of the first
paragraph with the words "Trustee, Master Servicer or Assignee".
28. Section 12.11 (Further Assurances) is hereby amended by (i) replacing
the first and second uses of the word "Purchaser" with the words "Master
Servicer and the Trustee" and (ii) replacing the last use of the word
"Purchaser" with the word "Assignee".
29. Section 12.13 (Third Party) is amended by adding the following
paragraph at the end of Section 12.13:
Notwithstanding any provision herein to the contrary, the parties to
this Agreement agree that it is appropriate, in furtherance of the
intent of such parties as set forth herein, that the Trustee, on
behalf of the Assignee receive the benefit of the provisions of this
Agreement as intended third party beneficiary of this Agreement to the
extent of such provisions. The Servicer shall have the same
obligations to the Trustee as if it were a party to this Agreement,
and the Trustee, on behalf of the Assignee, shall have the same rights
and remedies to enforce the provisions of this Agreement as if it were
a party to this Agreement. The Servicer shall only take direction from
the Master Servicer (if direction by the Master Servicer is required
under this Agreement) unless otherwise directed by this Agreement. The
Servicer acknowledges and agrees that the Master Servicer shall have
the right to enforce the Seller/Servicer's obligations under this
Agreement for the benefit of the Assignee and Trustee including the
right to exercise, on behalf of the Assignee and/or Trustee, any and
all of the remedies set forth in this Agreement as well as any
remedies available at law or in equity; and as a consequence of the
foregoing, shall have the same benefit of the indemnification provided
to the Assignee and Trustee hereunder. All such rights of the Master
Servicer (other than its rights to indemnification) shall terminate
upon the termination of this Agreement in accordance with its terms.
EXHIBIT B
MODIFICATIONS TO THE additional collateral AGREEMENT
1. Section 3 (Assignment of Security Interest) of the Additional Collateral
Agreement shall be inapplicable to this Assignment.
SCHEDULE I
SPECIFIED MORTGAGE LOAN SCHEDULE
