Exhibit 99.7c
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EXECUTION COPY
Xxxxxx Xxxxxxx Mortgage Capital Inc.
and
Xxxxxx Xxxxxxx Xxxx Xxxxxx Credit Corporation
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AMENDED AND RESTATED MASTER SERVICING AGREEMENT
Dated as of February 1, 2004
Fixed, Adjustable Rate, and Pledged Asset Mortgage Loans
Servicer Flow Delivery Program
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.................................................1
ARTICLE II
BOOKS AND RECORDS; TRANSFER OF MORTGAGE LOANS
Section 2.01 Books and Records............................................12
Section 2.02 Transfer of Mortgage Loans...................................12
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SERVICER
Section 3.01 Representations and Warranties of Servicer...................13
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Servicer to Act as Servicer..................................14
Section 4.02 Collection of Mortgage Loan Payments.........................15
Section 4.03 Realization Upon Defaulted Mortgage Loans....................15
Section 4.04 Establishment of Custodial Accounts; Deposits in
Custodial Accounts...........................................16
Section 4.05 Permitted Withdrawals From the Custodial Account.............17
Section 4.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts.....................................................18
Section 4.07 Permitted Withdrawals From Escrow Account....................18
Section 4.08 Payment of Taxes, Insurance and Other Charges,
Maintenance of Primary Insurance Policies: Collections
Thereunder...................................................19
Section 4.09 Transfer of Accounts.........................................20
Section 4.10 Maintenance of Property Insurance............................20
Section 4.11 Maintenance of Mortgage Impairment Insurance Policy..........21
Section 4.12 Errors and Omissions Insurance...............................21
Section 4.13 Title, Management and Disposition of REO Property............22
Section 4.14 Adjustments to Mortgage Interest Rates.......................22
Section 4.15 Subservicing Agreements Between Servicer and
Subservicers.................................................22
Section 4.16 Successor Subservicers.......................................23
Section 4.17 Liability of Servicer........................................23
Section 4.18 Assumption or Termination of Subservicing Agreements.........23
Section 4.19 Servicing Accounts...........................................24
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Section 4.20 Permitted Investments........................................24
ARTICLE V
ADMINISTRATION AND SERVICING OF TRADING ACCOUNTS
Section 5.01 Servicer to Service Trading Accounts.........................24
Section 5.02 Agreements with Respect to the Surety Bond...................25
ARTICLE VI
PAYMENTS TO OWNER
Section 6.01 Distributions................................................25
Section 6.02 Statements to Owner..........................................26
Section 6.03 Monthly Advances by Servicer.................................26
Section 6.04 Compensating Interest........................................27
ARTICLE VII
GENERAL SERVICING PROCEDURE
Section 7.01 Assumption Agreements........................................27
Section 7.02 Satisfaction of Mortgages and Release of Mortgage Files......28
Section 7.03 Servicing Compensation.......................................28
Section 7.04 Annual Statement as to Compliance............................29
Section 7.05 Annual Independent Certified Public Accountants'
Servicing Report.............................................29
Section 7.06 Owner's Right to Examine Servicer Records....................29
Section 7.07 Annual Certification.........................................30
ARTICLE VIII
REPORTS TO BE PREPARED BY COMPANY
Section 8.01 Servicer Shall Provide Information as Reasonably
Required.....................................................30
ARTICLE IX
SERVICER
Section 9.01 Indemnification; Third Party Claims..........................31
Section 9.02 Merger or Consolidation of Servicer..........................31
Section 9.03 Limitation on Liability of Servicer and Others...............31
Section 9.04 Servicer Not to Resign.......................................32
Section 9.05 No Transfer of Servicing.....................................32
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ARTICLE X
DEFAULT
Section 10.01 Events of Default............................................32
Section 10.02 Waiver of Defaults...........................................34
ARTICLE XI
TERMINATION
Section 11.01 Termination..................................................34
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Successor to Servicer........................................34
Section 12.02 Amendment....................................................35
Section 12.03 Assignments..................................................35
Section 12.04 Assignment of Servicing Rights...............................36
Section 12.05 Governing Law................................................36
Section 12.06 Assignment by Owner..........................................36
Section 12.07 Notices......................................................36
Section 12.08 Severabilitv Provisions......................................37
Section 12.09 Exhibits.....................................................37
Section 12.10 General Interpretive Principles..............................37
Section 12.11 Reproduction of Documents....................................37
Section 12.12 Successors and Assigns.......................................38
Section 12.13 Counterparts.................................................38
Section 12.14 Non-Solicitation.............................................38
EXHIBIT A Form of Limited Power of Attorney
EXHIBIT B Annual Certification
EXHIBIT C Data File
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This is a AMENDED AND RESTATED MASTER SERVICING AGREEMENT (this
"Agreement"), dated and effective as of February 1, 2004 and is by and between
Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York corporation, as owner
("Owner"), and Xxxxxx Xxxxxxx Xxxx Xxxxxx Credit Corporation, a Delaware
corporation, as servicer ("Seller").
PRELIMINARY STATEMENTS
Pursuant to an Amended and Restated Master Mortgage Loan Purchase
Agreement, dated as of March 1, 2000 between Owner and Servicer (as amended,
modified, restated or supplemented from time to time, the "Purchase
Agreement"), Owner may purchase from Servicer from time to time certain
residential, first mortgage loans. In order to facilitate the servicing of
such mortgage loans by Servicer, Servicer and the Owner are parties to that
certain Master Servicing Agreement, dated as of February 1, 1999 (the
"Original Servicing Agreement"), pursuant to which Servicer services and
administers each Mortgage Loan for Owner, its successors and assigns from and
after the respective Closing Date. At the present time, Owner and Servicer
desire to amend and restate the Original Servicing Agreement to make certain
modifications as set forth herein
In consideration of the premises and the mutual agreements
hereinafter set forth, Owner and Servicer agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires shall have the following meaning
specified in this Section (capitalized terms used and not otherwise defined
herein shall have the respective meanings specified in the Purchase Agreement
to the extent the same are defined therein):
"Additional Collateral": With respect to any Additional Collateral
Mortgage Loan, the securities and other assets held in a Trading Account
subject to a security interest securing such Additional Collateral Mortgage
Loan.
"Additional Collateral Mortgage Loan": A Mortgage Loan secured by
Additional Collateral in the form of a security interest in the securities and
other assets held in a Trading Account and that is identified by Servicer as
an Additional Collateral Mortgage Loan as to which the Additional Collateral
is still required to be provided.
"Additional Collateral Pledge Agreement": With respect to each
Additional Collateral Mortgage Loan, any pledge and security agreement and
account control agreement in favor of Servicer granting a security interest
and other rights in a securities account to secure the related Mortgage Loan.
"Agreement": This Amended and Restated Master Servicing Agreement
and all exhibits hereto, amendments hereof and supplements hereto, as the same
may be from time to time, amended, modified, related or supplemented.
"Adjustable Rate Mortgage Loan": A Mortgage Loan that provides for
the adjustment of the Mortgage Interest Rate payable with respect thereto in
accordance with the terms of the related Mortgage Note.
"Assignment": An assignment of the Mortgage, notice of transfer or
equivalent instrument sufficient under the laws of the jurisdiction wherein
the related Mortgaged Property is located to reflect of record the sale or
transfer of the Mortgage Loan, which assignment notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments
covering Mortgages securing Mortgaged Properties located in the same county,
if permitted by applicable law and acceptable for recording by the applicable
recording office. With respect to any Mortgage Loan registered with MERS, an
Assignment shall include a notice of transfer sufficient under the governing
instruments of MERS to reflect a transfer of the Mortgage Loan. An Assignment
shall include, as applicable, such instruments as are necessary and sufficient
under the laws of the jurisdiction where a Cooperative Apartment is located to
reflect of record the sale or transfer of the Mortgage Loan and security
interest in the Mortgaged Property affecting such Cooperative Apartment.
"Business Day": Any day other than (i) a Saturday or Sunday, or
(ii) a day on which banking or savings associations in the States of New York
or Illinois are authorized or obligated by law or executive order to be
closed.
"Closing Date": For each Transaction, the date on which Servicer
actually sells to Owner, and Owner actually purchases from Servicer, the
Mortgage Loans listed on the Final Mortgage Loan Schedule attached to the
respective Warranty Xxxx of Sale.
"Condemnation Proceeds": All awards or settlements in respect of a
taking of a partial or an entire Mortgaged Property by exercise of the power
of eminent domain or condemnation.
"Convertible Mortgage Loan": An Adjustable Rate Mortgage Loan with
a Mortgage Note that contains an option of the Mortgagor to convert the
related Mortgage Note from a Mortgage Note with an adjustable interest rate to
a Mortgage Note with a fixed interest rate.
"Cooperative Apartment": A dwelling unit in a multi-dwelling
building owned or leased by a cooperative housing corporation, which unit the
Mortgagor has an exclusive right to occupy pursuant to the terms of a
proprietary lease in accordance with the laws of the state in which the
building is located.
"Custodian": The Custodian under the Custodial Agreement, or its
successor.
"Custodial Account": The separate trust account or accounts
created and maintained pursuant to Section 4.04 which shall be entitled
"Xxxxxx Xxxxxxx Xxxx Xxxxxx Credit
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Corporation, in trust for Xxxxxx Xxxxxxx Mortgage Capital Inc.," or such other
title as is requested by Owner.
"Custodial Agreement": The Custodial Agreement among Servicer,
Owner and the Custodian for the retention of each Mortgage Note, Mortgage,
Assignment and certain other portions of each Mortgage File, substantially in
the form attached to the Purchase Agreement as Exhibit 3, as the same may be
amended, modified, restated or supplemented from time to time.
"Cut-off Date": With respect to each Mortgage Loan, the first day
of the month in which the related Closing Date occurs.
"Due Date": As to any Mortgage Loan, the day each Monthly Payment
is due on such Mortgage Loan exclusive of any days of grace.
"Eligible Account": An account that is (i) maintained at a
depository institution the short-term debt obligations (or, in the case of a
depository institution which is part of a holding company structure, the
short-term debt obligations of such parent holding company) of which have been
rated by each Rating Agency in one of its two highest short-term rating
categories at the time of the deposit therein, or (ii) a trust account
maintained with a corporate trust department of a federal or state chartered
depository institution or trust company, which institution is acting in its
fiduciary capacity.
"Equity Refinanced Mortgage Loan": A Refinanced Mortgage in which
the Mortgagor used less than the entire amount of the proceeds (net of any
closing costs, including discount and origination fees and prepaid items) to
refinance an existing mortgage loan and any junior lien that existed on the
related Mortgaged Property at the date of origination of the Refinanced
Mortgage Loan.
"Escrow Account": The separate trust account or accounts created
and maintained pursuant to Section 4.06 on which shall be entitled "Xxxxxx
Xxxxxxx Xxxx Xxxxxx Credit Corporation, in trust for Owner and various
Mortgagors," or such other title as is requested by Owner.
"Escrow Payments": The amounts constitute ground rents, taxes,
assessments, water charges, sewer rents, mortgage insurance premiums, property
insurance premiums and other payments required to be escrowed by the Mortgagor
with the mortgagee pursuant to any Mortgage Loan.
"Event of Default": Any one of the conditions or circumstances
enumerated in Section 10.01.
"Xxxxxx Mae": Xxxxxx Xxx, f/k/a the Federal National Mortgage
Association, or any successor organization.
"Final Mortgage Loan Schedule": The list of Mortgage Loans for a
Transaction, which list shall set forth the following information with respect
to each Mortgage Loan:
(i) the loan number;
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(ii) the Mortgagor's name;
(iii) the street address of the Mortgaged Property, including city,
state and zip code;
(iv) the Mortgage Interest Rate at origination;
(v) for each Adjustable Rate Mortgage Loan, the first Interest Rate
Adjustment Date and the first Payment Adjustment Date;
(vi) for each Adjustable Rate Mortgage Loan, the Gross Margin;
(vii) for each Adjustable Rate Mortgage Loan, the Lifetime Rate Cap;
(viii) for each Adjustable Rate Mortgage Loan, the Periodic Rate Cap;
(ix) the original term to maturity,
(x) the original principal balance;
(xi) the first payment date;
(xii) the maturity date;
(xiii) the Monthly Payment in effect as of the related Cut-off Date;
(xiv) the principal balance as of the related Cut-off Date, after
giving effect to all payments of principal due on or before
such date, whether or not received;
(xv) the Loan-to-Value Ratio as of the date origination;
(xvi) a code indicating whether the Mortgaged Property is occupied by
Mortgagor;
(xvii) a code indicating the type of residential dwelling;
(xviii) a code indicating whether the Mortgage Loan is a purchase
mortgage loan, rate/term refinance loan, limited cash-out loan
or cash-out refinance loan;
(xix) a code indicating whether the Mortgage Loan is covered by a
Primary Mortgage Insurance Policy;
(xx) a code indicating whether the Mortgage Loan is a Limited
Documentation Mortgage Loan;
(xxi) a code indicating whether the Mortgage Loan is an Additional
Collateral Mortgage Loan;
(xxii) for each Adjustable Rate Mortgage Loan, a code indicating the
type of Index;
(xxiii) a code indicating whether the Mortgage Loan is a Balloon
Mortgage Loan;
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(xxiv) the Servicing Fee Rate applicable to such Mortgage Loan, and if
such Mortgage Loan is an Adjustable Rate Mortgage Loan whose
first Interest Rate Adjustment has not occurred, the Servicing
Fee Rate (if different) prior to the first Interest Rate
Adjustment Date;
(xxv) a code indicating whether the Mortgage Loan is a Convertible
Mortgage Loan;
(xxvi) a code indicating whether the Mortgagor is self-employed;
(xxvii) a code indicating the value of the Mortgagor's assets at
origination;
(xxviii) Appraised Value; and
(xxix) a code indicating the Primary Mortgage Insurance Policy
provider and percent of coverage, if applicable.
Such schedule shall also set forth the weighted average of the amounts
described under (iv) above for all of the Mortgage Loans. Such list may be in
the form of more than one list, collectively setting forth all of the
information required.
"Xxxxxxx Mac": Xxxxxxx Mac, f/k/a the Federal Home Loan Mortgage
Corporation, or any successor organization.
"Gross Margin": With respect to each Adjustable Rate Mortgage
Loan, the fixed number of basis points set forth in the MSA Mortgage Loan
Schedule that is added to the Index on each Interest Rate Adjustment Due Date
in accordance with the terms of the related Mortgage Note to determine the
Mortgage Interest Rate for such Mortgage Loan, subject to any applicable
Periodic Rate Cap and Lifetime Rate Cap.
"Index": With respect to each Adjustable Rate Mortgage Loan and
each Interest Rate Adjustment Date, the index used to determine the Mortgage
Interest Rate on such Adjustable Rate Mortgage Loan, as specified in the
related Mortgage Note, in each case as available the number of days prior to
any Interest Rate Adjustment Date set forth in the related Mortgage Note,
which index may be (i) the average of the London Interbank Offered Rates for
one- or six-month U.S. dollar deposits, as published in the "Money Rates"
table of The Wall Street Journal or elsewhere (as specified in the related
Mortgage Note) on the date or dates specified in such Mortgage Note for the
determination of such rate, (ii) the weekly average of the closing market bid
yields on actively traded U.S. Treasury securities adjusted to a constant
maturity of one year, (iii) the weekly average or the monthly average of
weekly average auction rates on U.S. Treasury bills with a maturity of six
months, as published by the Board of Governors of the Federal Reserve System
in Federal Reserve Statistical Release H.15. (519), (iv) the weekly average of
the closing market bid yields on U.S. Treasury securities adjusted to a
constant maturity of one (1) year, as published by the Board of Governors of
the Federal Reserve System in Federal Reserve Statistical Release H.15. (519),
(v) the weekly average of the closing market bid yields on U.S. Treasury
securities adjusted to a constant maturity of five (5) years, as published by
Board of Governors of the Federal Reserve System in Federal Reserve
Statistical Release H.15. (519), (vi) the prime rate specified in the related
Mortgage Note, as published in the "Money Rates" table of The Wall Street
Journal, or elsewhere (as specified in such Mortgage
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Note), (vii) the monthly weighted average cost of funds of members of the
Federal Home Loan Bank of San Francisco, (viii) such other standard for
determining the change in the interest rate as may be set forth in the related
Mortgage Note, or (ix) if such index is not so published or is otherwise
unavailable, such comparable, alternative index selected by Servicer in
accordance with the terms of the Mortgage Notes and in consultation with
Owner.
"Insurance Proceeds": Proceeds of any Primary Mortgage Insurance
Policy, title policy, hazard policy or other insurance policy covering a
Mortgage Loan, if any, to the extent such proceeds are not to be applied to
the restoration of the related Mortgaged Property or released to the Mortgagor
in accordance with the procedures that Servicer would follow in servicing
mortgage loans held for its own account.
"Index": With respect to each Adjustable Rate Mortgage Loan and
each Interest Rate Adjustment Date, the index used to determine the Mortgage
Interest Rate on such Adjustable Rate Mortgage Loan as specified in the
related Mortgage Note, in each case as available the number of days prior to
any Interest Rate Adjustment Date set forth in the related Mortgage Note,
which index may be (i) the average of the London Interbank Offered Rates for
one- or six-month U.S. dollar deposits, as published in the "Money Rates"
table of The Wall Street Journal or elsewhere (as specified in the related
Mortgage Note) on the date or dates specified in such Mortgage Note for the
determination of such rate, (ii) the weekly average of the closing market bid
yields on actively traded U.S. Treasury securities adjusted to a constant
maturity of one year (iii) the weekly average or the monthly average of weekly
average auction rates on U.S. Treasury bills with a maturity of six months, as
published by the Board of Governors of the Federal Reserve System in Federal
Reserve System in Federal Reserve Statistical Release H.15. (519), (iv) the
weekly average of the closing market bid yields on U.S. Treasury securities
adjusted to a constant maturity of one (1) year, as published by the Board of
Governors of the Federal Reserve System in Federal Reserve Statistical Release
H.15. (519), (v) the weekly average of the closing market bid yields on U.S.
Treasury securities adjusted to a constant maturity of five (5) years, as
published by the Board of Governors of the Federal Reserve System in Federal
Reserve Statistical Release H.15. (519), (vi) the prime rate specified in the
related Mortgage Note, as published in the "Money Rates" table of The Wall
Street Journal, or elsewhere (as specified in such Mortgage Note), (vii) the
monthly weighted average cost of funds of members of the Federal Home Loan
Bank of San Francisco, (viii) such other standard for determining the change
in the interest rate as may be set forth in the related Mortgage Note, or (ix)
if such index is not so published or is otherwise unavailable, such comparable
alternative index selected by Servicer in accordance with the terms of the
Mortgage Notes and in consultation with Owner.
"Interest Rate Adjustment Date": With respect to each Adjustable
Rate Mortgage Loan, the date on which the Mortgage Interest Rate is adjusted
in accordance with the terms of the related Mortgage Note.
"Lifetime Rate Cap": With respect to each Adjustable Rate Mortgage
Loan, the maximum Mortgage Interest Rate that may be borne thereby, as set
forth in the related Mortgage Note.
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"Limited Documentation Mortgage Loan": A Mortgage Loan that was
originated pursuant to a "limited documentation" or "easy qualifier"
underwriting program.
"Liquidation Proceeds": Amounts, other than Insurance Proceeds and
Condemnation Proceeds, received by Servicer in connection with the liquidation
of a defaulted Mortgage Loan through a trustee's sale, foreclosure sale or
otherwise (including, but not limited to, amounts received with respect to a
an Additional Collateral Pledge Agreement), other than amounts received
following the acquisition of REO Property pursuant to Section 4.13.
"Loan Documents": With respect to any Mortgage Loan, the Mortgage
Note, Mortgage, and/or any other documents executed by Mortgagor and delivered
to Servicer evidencing or securing the Mortgage Loan.
"Loan-to-Value Ratio" or "LTV": With respect to any Mortgage Loan
as of any date on which a determination thereof is made, the ratio on such
date of the outstanding principal balance of such Mortgage Loan to the
Appraisal Value of the related Mortgaged Property.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Monthly Advance": The aggregate of the advances made by Servicer
on any Remittance Date pursuant to Section 6.03.
"Monthly Payment": The scheduled monthly payment of interest and,
when applicable, principal on a Mortgage Loan which is payable by a Mortgagor
from time to time under the related Mortgage Note on every Due Date.
"Moody's": Xxxxx'x Investors Service, Inc. or its successor in
interest.
"Mortgage": The mortgage, trust deed or other instrument securing
the respective Mortgage Loan, as the same may be amended, modified, restated
or supplemented from time to time.
"Mortgage File": As to any Mortgage Loan, the mortgage, any
related mortgage documents and, if the Mortgaged Property is a Cooperative
Apartment, all documents relating to the security interest in a Cooperative
Apartment, including but not limited to all paper, computer generated and
microfiche records, pertaining to a particular Mortgage Loan which are
specified in Exhibit 1 hereto and any additional documents required to be
added to the Mortgage File pursuant to the Program Documents.
"Mortgage Interest Rate": The annual rate at which interest
accrues on any Mortgage Loan, net of any premium on any related Primary
Mortgage Insurance Policy and any continuing compensation paid to
correspondent lenders; provided that, with respect to any Adjustable Rate
Mortgage Loan, the "Mortgage Interest Rate" shall mean the annual rate
applicable thereto as the same may be adjusted on any Interest Rate Adjustment
Date and subject to the limitations on such interest rate imposed by the
Periodic Rate Cap and the Lifetime Rate Cap.
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"Mortgage Loan": The "Mortgage Loans" (as defined in the Purchase
Agreement) which are subject to Agreement from time to time.
"Mortgage Loan Payments": With respect to each Mortgage Loan (i)
all scheduled principal due after the related Cut-off Date, (ii) all other
recoveries of principal collected after the related Cut-off Date and collected
by Servicer after the related Cut-off Date, and (iii) all payments of interest
on the Mortgage Loans at the Mortgage, Loan Remittance Rate minus that portion
of any such payment that is allocable to the period prior to the related
Cut-Off Date; provided, however, that payments of scheduled principal and
interest prepaid for a due date beyond the related Cut-off Date shall not be
applied to the principal balance as of the related Cut-off Date and the such
principal and such prepaid amounts (minus interest at the Servicing Fee Rate)
shall constitute a part of the Mortgage Loan Payments, which prepaid amounts
Servicer shall deposit into the related Custodial Account established for the
benefit of Owner for subsequent remittance by Servicer to Owner pursuant to
the Amended and Restated Master Servicing Agreement.
"Mortgage Loan Remittance Rate": With respect to each Mortgage
Loan, the related Mortgage Interest Rate minus the Servicing Fee Rate.
"Mortgage Note": The note or other evidence of the indebtedness of
a Mortgagor secured by a Mortgage.
"Mortgaged Property": The underlying real property securing
repayment of a Mortgage Note, consisting of a fee simple or leasehold interest
in a single parcel of real property improved by a residential dwelling or a
single Cooperative Apartment including the stock certificates evidencing
ownership in such Cooperative Apartment, the proprietary lease, and all
attendant right, title and interest thereto.
"Mortgagor": The obligor on a Mortgage Note.
"MSA Mortgage Loan Schedule": Collectively, a schedule comprised
of all Final Mortgage Loan Schedules, but excluding all Mortgage Loans assumed
or transferred by Owner, or otherwise no longer subject to servicing under
this Agreement.
"Officer's Certificate": A certificate signed by the Chairman of
the Board, the Vice Chairman of the Board, the President, a Senior Vice
President, Vice President, or an Assistant Vice President of Servicer, and
delivered to Owner as required by this Agreement.
"Opinion of Counsel": A written opinion of counsel, who may be
counsel for Servicer, reasonably acceptable to Owner.
"Original Additional Collateral Requirement": With respect to any
Additional Collateral Mortgage Loan, generally thirty percent (30%) of the
original principal balance of such Mortgage Loan or such lesser percentage
thereof as specified by Servicer in connection with the origination of such
Additional Collateral Mortgage Loan.
"Owner": Owner of the Mortgage Loans.
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"Payment Adjustment Date": With respect to each Adjustable Rate
Mortgage Loan, the first date on which payments thereon may be adjusted and
all subsequent such dates of adjustment, as set forth in the related Final
Mortgage Loan Schedule and in the related Mortgage Note.
"Periodic Rate Cap": With respect to each Adjustable Rate Mortgage
Loan as to which the related Final Mortgage Loan Schedule indicates the
existence of a Periodic Rate Cap, the provision of the related Mortgage Note
that provides for a maximum amount by which the Mortgage Interest Rate may
increase (or, if so indicated on such Final Mortgage Loan Schedule, decease)
on an Interest Rate Adjustment Date above the Mortgage Interest Rate
immediately prior to such Interest Rate Adjustment Date.
"Permitted Investment": Any one or more of the following:
(i) direct obligations of, or obligations fully guaranteed as to
principal and interest by, the United States or any agency or
instrumentality thereof, provided such obligations are backed by the
full faith and credit of the United States;
(ii) repurchase obligations (the collateral for which is held by a
third party) with respect to any security described in clause (i) above,
provided that the long-term unsecured obligations of the party agreeing
to repurchase such obligations are at the time rated by each of the
Rating Agencies in one of its two highest rating categories;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company incorporated under the
laws of the United States or any state thereof or the District of
Columbia, provided that the short-term commercial paper of such bank or
trust company at the date of acquisition thereof has been rated by each
of the Rating Agencies in its highest rating;
(iv) money market funds rated by each of the Rating Agencies in
its highest short-term debt rating category;
(v) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof or the District of Columbia which on the
date of acquisition has been rated by each of the Rating Agencies in its
highest short-term rating; and
(vi) any other obligation or security acceptable to each of the
Rating Agencies (as certified by a letter from each of the Rating
Agencies to Owner) in respect of mortgage pass through certificates
rated in one of its two highest rating categories;
provided, that with the exception of U.S. Treasury Strips, no such instrument
shall be a Permitted Investment if such instrument evidences either (a) the
right to receive interest only payments with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument where the principal and interest
payments with respect to such instruments provide a yield to maturity
exceeding 120% of the yield to maturity at par of such underlying obligation.
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"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Prepayment Interest Shortfall": With respect to any Remittance
Date and any Mortgage Loan that was the subject of a Principal Prepayment
during the related Principal Prepayment Period, an amount equal to one month's
interest at the Mortgage Loan Remittance Rate on the amount of such Principal
Prepayment, less the amount of interest (adjusted to the Mortgage Loan
Remittance Rate) paid by the Mortgagor in respect of such Principal
Prepayment.
"Primary Mortgage Insurance Policy": With respect to each Mortgage
Loan, the policy of primary mortgage insurance, if any, in effect as indicated
on the related Mortgage Loan Schedule, or any replacement policy therefor
obtained by Servicer pursuant to the Amended and Restated Master Servicing
Agreement.
"Principal Prepayment Period": As to any Remittance Date, the
calendar month preceding the month of distribution.
"Rating Agency": Either of Standard & Poor's and Moody's.
"Record Date": The close of business of the last Business Day of
the month preceding the month of the related Remittance Date.
"Refinanced Mortgage Loan": A Mortgage Loan that was made to a
Mortgagor who owned the Mortgaged Property prior to the origination of such
Mortgage Loan and the proceeds of which (net of any closing costs, including
discount and origination fees and prepaid items) were used in whole or part to
satisfy an existing mortgage.
"REMIC": A real estate mortgage investment conduit, as such term
is defined by the Internal Revenue Code of 1986, as amended.
"Remittance Date": The 18th day of any month or, if such 18th day
is not a Business Day, the first Business Day immediately following such 18th
day.
"REO Disposition": The final sale by Servicer of any REO Property.
"REO Property": A Mortgaged Property acquired by Servicer on
behalf of Owner as described in Section 4.13.
"Securitization Transfer": The sale or transfer of some or all of
the Mortgage Loans to a trust or other entity as part of a publicly-issued or
privately-placed, rated or unrated mortgage pass-through or other
mortgage-backed securities transaction.
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred in the performance by Servicer of its
servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of the Mortgaged Property, (ii)
enforcement or judicial proceedings, including foreclosures,
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bankruptcies and defense of claims relating to the Mortgages and Mortgaged
Property, (iii) the management and liquidation of the REO Property and (iv)
compliance with the obligations under Section 4.08 and (v) paying taxes and
insurance with respect to the Mortgaged Property.
"Servicing Fee": With respect to any Mortgage Loan and any
Remittance Date, the fee payable monthly to Servicer pursuant to Section 7.03.
"Servicing Fee Rate": With respect to each Mortgage Loan, the rate
per annum set forth in the related Final Mortgage Loan Schedule as the
"Servicing Fee Rate".
"Servicing Officer": Any officer of Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by Servicer to Owner
upon request, as such list may from time to time be amended.
"Standard & Poor's": Standard & Poor's Ratings Services, a
division of the XxXxxx-Xxxx Companies, Inc., or its successor in interest.
"Subservicer": Any person with which Servicer has entered into a
Subservicing Agreement and which meets the qualifications of a Subservicer
pursuant to Section 4.15.
"Subservicing Account": An account established by a Subservicer
which meets the requirements set forth in Section 4.20 and is otherwise
acceptable to Servicer, and which must be an Eligible Account.
"Subservicing Agreement": The written agreement between Servicer
and a Subservicer relating to the servicing and administration of the Mortgage
Loans as provided in Section 4.15.
"Surety Agreement": The Surety Bond Reimbursement Agreement dated
March 17, 1999 between the Surety Bond Issuer and Servicer pursuant to which
the Surety Bond Issuer has issued the Surety Bond, as the same may be amended,
modified, restated or supplemented from time to time.
"Surety Bond": The limited purpose Surety Bond, dated March 17,
1999, issued by the Surety Bond Issuer in favor of the Sellers, as the same
may be amended, modified, restated or supplemented from time to time.
"Surety Bond Issuer": AMBAC Assurance Corporation or its
successors.
"Trading Account": With respect to any Additional Collateral
Mortgage Loan as to which an Additional Collateral Pledge Agreement was made,
the account in which is held the securities and other assets that are subject
to such Additional Collateral Pledge Agreement.
"Transaction": The sale by Servicer to Owner, and the purchase by
Owner from Servicer, of one or more Mortgage Loans on a Closing Date, as
evidenced by the execution and delivery by Servicer to Xxxxxx Xxxxxxx Mortgage
Capital Inc. as the initial Owner, of the Warranty Xxxx of Sale.
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"Warranty Xxxx of Sale": The warranty xxxx of sale executed and
delivered by Servicer to Owner on a Closing Date, evidencing the sale of the
related Mortgage Loans by Servicer to Owner and setting forth certain
representations and warranties of Servicer with respect thereto, in the form
attached to the Purchase Agreement as Exhibit 8.
ARTICLE II
BOOKS AND RECORDS; TRANSFER OF MORTGAGE LOANS
Section 2.01 Books and Records.
Servicer shall be responsible for maintaining, and shall maintain,
a complete set of books and records for the Mortgage Loans, which shall be
appropriately identified in Servicer's books and records to clearly reflect
the ownership of the Mortgage Loans by Owner, and subsequent assignments and
transfers of the Mortgage Loans pursuant to Section 2.02 hereof. At the
request of Owner, Servicer shall promptly deliver to Owner an MSA Mortgage
Loan Schedule setting forth all Mortgage Loans that Servicer then services and
administers for Owner under this Agreement; provided, however, that the
information contained on such MSA Mortgage Loan Schedule may be as of the
Closing Date for each respective Mortgage Loan and may consist of the Final
Mortgage Loan Schedule(s) attached to the Warranty Xxxx(s) of Sale for such
Mortgage Loans, with manual deletions or additions thereto or other revisions
thereof.
Section 2.02 Transfer of Mortgage Loans.
Owner may, with the consent of Servicer (which shall not be
unreasonably withheld), assign, sell or transfer (each, a "Transfer") any of
Owner's interest in and to any of the Mortgage Loans to any institutional
investor that has a net worth of not less than $50,000,000 and owns not less
than $250,000,000 in residential mortgage loans (each, a "Permitted
Transferee"), subject in each case to the rights of Servicer under the
provisions of this Agreement, except that no such assignment, sale, transfer,
pledge, hypothecation or encumbrance shall increase Servicer's liabilities or
obligations or decrease Servicer's rights under this Agreement, and Owner
shall remain fully liable for performance of all of its obligations as to the
transferred Mortgage Loans. As a condition precedent to any Transfer (in
addition to the other conditions set forth herein), the Permitted Transferee
shall enter into a servicing agreement with Servicer in the form of this
Servicing Agreement, but mutatis mutandis, and deliver such certificates and
opinions as Servicer may reasonably require. Upon consummation of any
Transfer, the MSA Mortgage Loan Schedule shall be amended by Servicer to
reflect such transfer. Notwithstanding the foregoing, Owner shall not, unless
Owner has obtained consent from the Servicer, which consent shall not be
unreasonably withheld, effect Transfer of (i) less than one-hundred (100)
Mortgage Loans, (ii) Mortgage Loans with an aggregate unpaid principal balance
less than $5,000,000 to any Person (iii) Mortgage Loans if the remaining
Mortgage Loans listed on the MSA Mortgage Loan Schedule after giving effect
thereto would have an aggregate unpaid principal balance less than $5,000,000
or (iii) Mortgage Loans other than to a Permitted Transferee in a transaction
that complies with the terms of this Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SERVICER
Section 3.01 Representations and Warranties of Servicer.
Servicer represents, warrants and covenants to Owner, as of the
date of this Agreement and as of each Closing Date or as of such other date
specified below, that:
(i) Servicer (a) is a corporation, duly incorporated, validly
existing and in good standing under the laws of the State of Delaware,
(b) has all licenses necessary to carry on its business as now being
conducted, (c) has all material licenses and is qualified and in good
standing under the laws of each state where a Mortgaged Property is
located unless not required under applicable law to effect such
qualification (with no demand for such qualification having been made
upon Servicer by any such state), and (d) is in compliance with the laws
of any such state to the extent necessary to permit the enforcement of
Owner's rights (either directly or through a Subservicer) under each
Mortgage Loan and to permit the servicing of the Mortgage Loans in
accordance with the terms of this Agreement.
(ii) Servicer has the full power and authority to hold each
Mortgage Loan, to service each Mortgage Loan, to execute and deliver
this Agreement, and to enter into and consummate all transactions
contemplated by this Agreement. Servicer has duly authorized the
execution, delivery and performance of this Agreement, has duly executed
and delivered this Agreement, and this Agreement, assuming due
authorization, execution and delivery by Owner and the enforceability
against Owner, constitutes a legal, valid and binding obligation of
Servicer, enforceable against it in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
liquidation, moratorium reorganization or other similar laws affecting
the rights of creditors generally or by general principles of equity,
regardless of whether enforcement is sought in a proceeding in equity or
at law.
(iii) The consummation of the transactions contemplated by this
Agreement is in the ordinary course of Servicer's business and will not
conflict with or result in a breach of any of the terms, conditions or
provisions of Servicer's certificate of incorporation or by-laws or any
legal restriction or any agreement or instrument to which Servicer is
now party or by which it is bound, or constitute a material default or
result in an acceleration under any of the foregoing, or result in the
violation of any law, rule, regulation, order, judgment or decree to
which Servicer or its property is subject.
(iv) Servicer is an approved seller/servicer for Xxxxxx Mae or
Xxxxxxx Mac in good standing and is a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to Section 203 of
the National Housing Act. No event has occurred that would render
Servicer unable to comply with Xxxxxx Mae or Xxxxxxx Mac eligibility
requirements or that would require notification to either Xxxxxx Mae or
Xxxxxxx Mac.
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(v) Servicer has no reason or cause to believe that it cannot
perform each covenant contained in this Agreement.
(vi) There is no action, suit, proceeding or investigation pending
or, to Servicer's knowledge, threatened, against Servicer that, in
Servicer's judgment, if determined adversely to Servicer, would
materially and adversely affect the validity or enforceability of this
Agreement or the ability of Servicer to perform its obligations
hereunder in accordance with the terms hereof.
(vii) No consent, approval, authorization or order of any court or
governmental authority is required for the execution and delivery of
this Agreement by Servicer or for the performance by Servicer of its
obligations hereunder, other than such consent, approval, authorization
or order as has been obtained prior to the Closing Date.
(viii) Seller has, in its capacity as servicer for each Mortgage
Loan, caused to be fully furnished, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information (i.e., favorable and unfavorable) on its borrower credit
files to Equifax, Experian, and Trans Union Credit Information Company
(three of the credit repositories), on a monthly basis.
Servicer shall indemnify Owner and hold it harmless against any
losses, damages, penalties, fines, forfeitures, legal fees and related costs,
judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach of
Servicer's representations and warranties contained in this Section 3.01. It
is understood and agreed that the obligations of Servicer set forth in this
Section 3.01 to indemnify Owner as provided above constitute the sole remedies
of Owner respecting a breach of the foregoing representations and warranties.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Servicer to Act as Servicer.
Servicer, as independent contact servicer, shall service and
administer the Mortgage Loans in accordance with this Agreement and the normal
and usual standards of practice of prudent mortgage lenders, and shall have
full power and authority, acting alone, to do or cause to be done any and all
things in connection with such servicing and administration that Servicer may
deem necessary or desirable and consistent with the terms of this Agreement.
Consistent with the terms of this Agreement, Servicer may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
strict compliance with any such term or in any manner grant indulgence to any
Mortgagor if, in Servicer's reasonable and prudent determination, such waiver,
modification, postponement or indulgence is not materially adverse to Owner;
provided, however, that Servicer shall not permit any modification with
respect to any Mortgage Loan that would change the Mortgage Interest Rate,
forgive the payment of any principal or interest payments, make future
advances or extend the final maturity date on such Mortgage Loan. Without
limiting the generality of the foregoing, Servicer shall
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continue, and is hereby authorized and empowered, to execute and deliver on
behalf of itself and Owner, all instruments of satisfaction or cancellation,
or of partial or full release, discharge and all other comparable instruments,
with respect to the Mortgage Loans and with respect to the Mortgaged Property.
Owner has provided and shall, as necessary, promptly furnish Servicer with
such powers of attorney (a form of which is attached hereto as Exhibit A) as
are necessary and appropriate and with such other documents as are necessary
or appropriate to enable Servicer to carry out its servicing and
administrative duties under this Agreement.
In servicing and administering the Mortgage Loans, Servicer shall
employ procedures including collection procedures and exercise the same care
that it customarily employs and exercises in servicing and administering
mortgage loans for its own account giving due consideration to accepted
mortgage servicing practices of prudent lending institutions and Owner's
reliance on Servicer.
Section 4.02 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the principal and interest
on all Mortgage Loans are paid in full, Servicer shall proceed diligently to
collect all payments due under each Mortgage Loan when the same shall become
due and payable and shall, to the extent such procedures shall be consistent
with this Agreement and the terms and provisions of any related Primary
Mortgage Insurance Policy, follow such collection procedures as it follows
with respect to mortgage loans comparable to the Mortgage Loans and held for
its own account. Further, Servicer will take special care in ascertaining and
estimating annual ground rents, taxes, assessments, water rates, property
insurance premiums, mortgage insurance premiums, and all other charges that,
as provided in the Mortgage, will become due and payable to the end that the
installments payable by the Mortgagors will be sufficient to pay such charges
as and when they become due and payable.
Section 4.03 Realization Upon Defaulted Mortgage Loans.
Servicer shall use reasonable efforts, consistent with the
procedures that Servicer would use in servicing loans for its own account, to
foreclose upon or otherwise comparably convert the ownership of Mortgaged
Properties which secure Mortgaged Loans which come into and continue in
default and as to which no satisfactory arrangements can be made for
collection of delinquent payments pursuant to Section 4.01. In addition, if an
Additional Collateral Mortgage Loan becomes a defaulted Mortgage Loan,
Servicer shall make all reasonable efforts to realize upon the Additional
Collateral pertaining to such Mortgage Loan, and any proceeds from the
realization thereof (and not such Additional Collateral itself) shall be
included in the related Liquidation Proceeds and deposited in the Custodial
Account, net of any related Servicing Advances. Servicer shall use reasonable
efforts to realize upon defaulted Mortgage Loans in such a manner as will
maximize the receipt of principal and interest by Owner, taking into account,
among other things, the timing of foreclosure proceedings and any proceedings
with respect to Additional Collateral. The foregoing is subject to the
provisions that, in any case in which Mortgaged Property shall have suffered
damage, Servicer shall not be required to expend its own funds toward the
restoration of such property in excess of an aggregate of $2,000 during the
life of the Mortgaged Loan, unless it shall determine in its discretion (i)
that such restoration will increase the proceeds of liquidation of the related
Mortgage Loan to Owner after
15
reimbursement to itself for such expenses, and (ii) that such expenses will be
recoverable by Servicer through Insurance Proceeds or Liquidation Proceeds
from the related Mortgaged Property, as contemplated in Section 4.05.
In the event that any payment due under any Mortgage Loan remains
delinquent for a period of 90 days or more and, in the judgment of Servicer,
the related Mortgagor is not likely to become current within a reasonable
period of time, Servicer shall commence foreclosure or other proceedings to
realize upon the Mortgaged Property securing such Mortgage Loan.
Section 4.04 Establishment of Custodial Accounts; Deposits in
Custodial Accounts.
Servicer shall establish and maintain at all times appropriate
custodial accounts for principal and interest, and taxes and insurance with
respect to the Mortgage Loans, Servicer will establish and maintain a
Custodial Account for Xxxxxx Xxxxxxx Mortgage Capital Inc., as Owner.
Servicer shall deposit in the Custodial Account on a daily basis,
and retain therein the following payments and collections received or made by
it subsequent to the Cut-off Date, or received by it prior to the Cut-off Date
but allocable to a period subsequent thereto, other than in respect of
principal and interest on the Mortgage Loans due on or before the Cut-off
Date:
(i) All payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) All payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
(iii) All Liquidation Proceeds;
(iv) All Insurance Proceeds including amounts required to be
deposited pursuant to Sections 4.08, 4.10 and 4.11, other than proceeds
to be held in the Escrow Account and applied to the restoration or
repair of the Mortgaged Property or released to the Mortgagor in
accordance with Servicer's normal servicing procedures, the related loan
documents or applicable law;
(v) All Condemnation Proceeds affecting any Mortgaged Property
that are not released to the Mortgagor in accordance with Servicer's
normal servicing procedures, the loan documents or applicable law;
(vi) Any Monthly Advances;
(vii) All proceeds of any Mortgage Loan repurchased in accordance
with Section 5(c) or (d) of the Purchase Agreement, and all amounts
required to be deposited by Servicer in connection with shortfalls in
principal amount of Qualified Substitute Mortgage Loans pursuant to
Section 5(c) of the Purchase Agreement;
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(viii) Any amounts required to be deposited by Servicer pursuant
to Section 4.11 in connection with the deductible amount of any blanket
property insurance policy;
(ix) Any amounts required to be deposited by Servicer pursuant to
Section 6.04 for the month of distribution;
(x) Any amounts in respect of Permitted Investments required to be
deposited pursuant to Section 4.20;
(xi) Any amounts required to be deposited by Servicer in
connection with any REO Property pursuant to Section 4.13; and
(xii) Any amounts required to be deposited into the Custodial
Account pursuant to Section 7.01.
The foregoing requirements for deposit in the Custodial Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges
and assumption fees, to the extent permitted by Section 7.01, need not be
deposited by Servicer in the Custodial Account. Any interest paid on funds
deposited into the Custodial Account by the depository institution shall
accrue to the benefit of Servicer and Servicer shall be entitled to retain and
withdraw such interest from the Custodial Account pursuant to Section
4.05(iv). In addition, funds in the Custodial Account may be invested in
Permitted Investments in accordance with the provisions set forth in Section
4.20.
Section 4.05 Permitted Withdrawals From the Custodial Account.
Servicer may, from time to time, withdraw from the Custodial
Account for the following purposes:
(i) To make payments to Owner in the amounts and in the manner
provided for in Section 6.01;
(ii) To reimburse itself for unreimbursed Monthly Advances from
the related Monthly Payments collected from the Mortgagors or, to the
extent an unreimbursed Monthly Advance is determined by the Servicer to
be unrecoverable, from the Custodial Account;
(iii) To reimburse itself for unreimbursed Servicing Advances and
for unreimbursed Servicing Fees, provided that with respect to any
Mortgage Loan Servicer's right to such reimbursement shall be limited,
subject to Section 4.13, to the related funds collected by Servicer from
the Mortgagor or any 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. Servicer's
right to the reimbursement set forth in the preceding sentence shall be
prior to the rights of Owner to such proceeds and amounts, except that
where Servicer is required to repurchase a Mortgage Loan pursuant to
Section 5(c) or (d) of the Purchase Agreement, Servicer's right to such
reimbursement shall be subsequent to the rights of Owner to receive
payment from the Custodial Account representing the repurchase price set
forth
17
in Section 5(c) or (d) of the Purchase Agreement, as applicable, and
representing all other amounts required to be paid to Owner with respect
to such repurchased Mortgage Loan;
(iv) To pay itself as servicing compensation any interest earned
on funds in the Custodial Account;
(v) To pay itself with respect to each Mortgage Loan that has been
repurchased pursuant to Section 5(c) or (d) of the Purchase Agreement
all related Monthly Payments and such other amounts as may be collected
by Servicer from the Mortgagor or otherwise relating to such Mortgage
Loan, provided that such Monthly Payments or other amounts have not been
distributed as of the date on which the related repurchase price is
determined;
(vi) To refund to Servicer any amount deposited in the Custodial
Account and not required to be deposited therein; and
(vii) To clear and terminate the Custodial Account upon the
termination of this Agreement.
Section 4.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts.
Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan which constitute Escrow Payments separate and
apart from any of its own funds and general assets. Servicer will establish
and maintain an Escrow Account for Xxxxxx Xxxxxxx Mortgage Capital Inc., as
Owner. Each Escrow Account shall be an Eligible Account.
Servicer shall deposit in the Escrow Account or Accounts on a
daily basis, and retain therein, (i) all Escrow Payments collected on account
of the Mortgage Loans, for the purpose of effecting timely payment of any such
items as required under the terms of this Agreement, and (ii) all Insurance
Proceeds which are to be applied to the restoration or repair of any Mortgaged
Property. Servicer shall make withdrawals therefrom only to effect such
payments as are required under this Agreement, and for such other purposes as
set forth or in accordance with Section 4.07. Servicer shall be entitled to
retain any interest paid on funds deposited into the Escrow Account by the
depository institution other than interest on escrowed funds required by law
to be paid to a Mortgagor.
Section 4.07 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account may be made by Servicer (i) to
effect timely payments of ground rents, taxes, assessments, water rates,
property insurance premiums, Primary Mortgage Insurance Policy premiums, if
applicable, and comparable items, (ii) to reimburse Servicer for any Servicing
Advance made by Servicer with respect to an Escrow Payment, but only from
amounts received on the related Mortgage Loan which represent late payments or
collections of Escrow Payments thereunder, and only to the extent permitted by
applicable law, (iii) to refund to the Mortgagor any funds as may be
determined to be overages, (iv) for transfer to the Custodial Account in
accordance with the terms of this Agreement, (v) for application to
restoration or repair of the Mortgaged Property, (vi) to pay to Servicer, or
to the Mortgagor to the extent required by law, any interest paid on the funds
deposited into the Escrow
18
Account, (vii) to refund to Servicer any amount deposited in the Escrow
Account and not required to be deposited therein or (viii) to clear and
terminate the Escrow Account on the termination of this Agreement. As part of
its servicing duties, Servicer shall pay to the Mortgagors interest on funds
in the Escrow Account, to the extent required by law, and to the extent that
interest earned on funds in the Escrow Account is insufficient, shall pay such
interest from its own funds, without any reimbursement therefor.
Section 4.08 Payment of Taxes, Insurance and Other Charges;
Maintenance of Primary Insurance Policies; Collections Thereunder.
With respect to each Mortgage Loan to the extent reasonably
feasible based on information received from the Mortgagors, Servicer shall
maintain accurate records reflecting the status of ground rents, taxes,
assessments, water rates and other charges which are or may become a lien upon
the Mortgaged Property, and Servicer shall effect payment thereof to ensure
the lien of the Mortgage remains in full force and effect by applying deposits
of the Mortgagor in the Escrow Account, where such an account is maintained in
connection with a Mortgage Loan, to the extent permitted under the terms of
the Mortgage and applicable law. In the event Servicer does not enforce, or is
prohibited by law from enforcing, the escrow requirements under a Mortgage and
does not require a Mortgagor to make deposits into the Escrow Account,
Servicer shall ensure that all ground rents, taxes, assessments, water rates,
and any other charges which are or may become a lien upon the Mortgaged
Property are paid and the lien of the Mortgage remains in full force and
effect, and shall advance its own funds, if necessary, to effect payment of
the same.
With respect to each Mortgage Loan Servicer shall maintain or
cause to be maintained accurate records reflecting the status of property
insurance policy premiums, and shall effect payment thereof by applying
deposits of the Mortgagor in the Escrow Account, where such an account is
maintained in connection with a Mortgage Loan, to the extent permitted under
the terms of the Mortgage and applicable law. In the event Servicer does not
enforce, or is prohibited by law from enforcing the escrow requirements under
a Mortgage and does not require a Mortgagor to make deposits into the Escrow
Account, Servicer shall ensure that at all times each Mortgaged Property
affected thereby is insured by property insurance to the extent required under
Section 4.10 of this Agreement, and shall advance its own funds to effect
payment of the same, if necessary.
Servicer shall maintain in full force and effect a Primary
Mortgage Insurance Policy with respect to each Mortgage Loan as to which a
Primary Mortgage Insurance Policy was in effect on the related Closing Date,
which Primary Mortgage Insurance Policy shall be the same as, or conform in
all material respects to, such Primary Mortgage Insurance Policy in effect on
the related Closing Date and shall be issued by an insurer whose claims-paying
ability is satisfactory to Xxxxxx Xxx and Xxxxxxx Mac and that is licensed to
do business in the state in which the related Mortgaged Property is located.
Such coverage shall be maintained until the Loan-to-Value Ratio of the related
Mortgage Loan is reduced to 80% or less. Servicer will not cancel or refuse to
renew any Primary Mortgage Insurance Policy in effect on the Closing Date that
is required to be kept in force under this Agreement unless a replacement
Primary Mortgage Insurance Policy for such canceled or nonrenewed policy is
obtained from and maintained with an insurer that satisfies the standards set
forth above. Servicer shall not take any action that
19
would result in non-coverage under any applicable Primary Mortgage Insurance
Policy of any loss which, but for the actions of Servicer, would have been
covered thereunder. In connection with any assumption or substitution of
liability agreement entered into or to be entered into pursuant to Section
7.01, Servicer shall promptly notify the insurer under the related Primary
Mortgage Insurance Policy, if any, of such assumption or substitution of
liability in accordance with the terms of such policy and shall take all
actions that may be required by such insurer as a condition to the
continuation of coverage under the Primary Mortgage Insurance Policy. If such
Primary Mortgage Insurance Policy is terminated as a result of such assumption
or substitution of liability Servicer shall obtain a replacement Primary
Mortgage Insurance Policy as provided above.
In connection with its activities as servicer, Servicer agrees to
prepare and present, on behalf of itself, and Owner, claims to the insurer
under any Primary Mortgage Insurance Policy in a timely fashion in accordance
with the terms of such policies and, in this regard, take such action as shall
be necessary to permit recovery under any Primary Mortgage Insurance Policy
respecting a defaulted Mortgage Loan. Pursuant to Section 4.04, any amounts
collected by Servicer under any Primary Mortgage Insurance Policy shall be
deposited into the Custodial Account, subject to withdrawal pursuant to
Section 4.05.
Section 4.09 Transfer of Accounts.
Servicer may transfer the Custodial Account or the Escrow Account
to a different depository institution from time to time. Servicer shall
promptly notify Owner upon making any such transfer. In any case, the
Custodial Account and Escrow Account shall be Eligible Accounts.
Section 4.10 Maintenance of Property Insurance.
Servicer shall cause to be maintained for each Mortgage Loan
property insurance with extended coverage as is customary in the area where
the Mortgaged Property is located in compliance with Servicer's policies as
from time to time in effect; provided, however, that coverage under such
property insurance policy shall in no event exceed the maximum amount, if any,
as set forth in any document in the Mortgage File or by applicable law. With
respect to each Mortgage Loan, Servicer shall maintain or cause to be
maintained such policy of flood insurance as is required to be maintained
pursuant to the Flood Disaster Protection Act of 1973 as amended, to the
extent available. Servicer shall also maintain on any REO Property, (a)
property insurance with extended coverage in an amount which is at least equal
to the lesser of (i) the maximum insurable value of the improvements
(exclusive of excavations, footings, foundations, landscaping and paving)
which are a part of such property and (ii) the outstanding principal balance
of the related Mortgage Loan at the time it became an REO Property plus
accrued interest at the Mortgage Interest Rate and related Servicing Advances,
(b) liability insurance and (c) to the extent required and available under the
Flood Disaster Protection Act of 1973, as amended, flood insurance in an
amount as provided above. Pursuant to Section 4.04, any amounts collected by
Servicer under any such policies other than amounts to be deposited into the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or REO Property, or released to the Mortgagor in accordance with
Servicer's normal servicing procedures, shall be deposited into the Custodial
Account, subject to withdrawal pursuant to
20
Section 4.05. Any cost incurred by Servicer in maintaining any such insurance
shall not, for the purpose of calculating distributions to the Owner, be added
to the unpaid principal balance of the related Mortgage Loan, notwithstanding
that the terms of such Mortgage Loan so permit. It is understood and agreed
that no earthquake or other additional insurance need be required by Servicer
of the Mortgagor or maintained on property acquired in respect of the Mortgage
Loan, other than pursuant to such applicable laws and regulations as shall at
any time be in force and as shall require such additional insurance. All such
policies shall be endorsed with standard mortgagee clauses with loss payable
to Servicer, and shall provide for at least thirty days prior written notice
of any cancellation, reduction in the amount of, or material change in,
coverage to Servicer.
Section 4.11 Maintenance of Mortgage Impairment Insurance Policy.
If Servicer shall obtain and maintain a blanket insurance policy
insuring against hazard losses on all of the Mortgage Loans, then, to the
extent such policy provides coverage in an amount equal to the amount required
pursuant to Section 4.10 and otherwise complies with all other requirements of
Section 4.10 it shall conclusively be deemed to have satisfied its obligations
as set forth in Section 4.10, it being understood and agreed that such policy
may contain a deductible clause, in which case Servicer shall, in the event
that there shall not have been maintained on the related Mortgaged Property or
REO Property a policy complying with Section 4.10, and there shall have been
one or more losses which would have been covered by such policy but for the
existence of such deductible clause, pay the amount not otherwise payable
under the blanket policy. In connection with its activities as servicer of the
Mortgage Loans, Servicer agrees to prepare and present, on behalf of Owner,
claims under such blanket policy in a timely fashion in accordance with the
terms of such policy. Upon request of Owner, Servicer shall cause to be
delivered to Owner a certified true copy of such policy and use reasonable
efforts to obtain a statement from the insurer thereunder that such policy
shall in no event be terminated or materially modified without thirty (30)
days prior written notice to Owner.
Section 4.12 Errors and Omissions Insurance.
Servicer shall maintain, at its own expense, a blanket fidelity
bond and an errors and omissions insurance policy, with broad coverage with
responsible companies that would meet the requirements of Xxxxxx Mae or
Xxxxxxx Mac on all officers, employees or other persons acting in any capacity
with regard to the Mortgage Loan to handle funds, money, documents and papers
relating to the Mortgage Loan. The errors and omissions insurance shall be in
the form of the Mortgage Banker's Blanket Bond and shall protect and insure
Servicer against losses, including forgery, theft, embezzlement and omissions
and negligent acts of such shall also protect and insure Servicer against
losses in connection with the failure to maintain any insurance policies
required pursuant to this Agreement and the release or satisfaction of a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 4.12 requiring the errors and
omissions insurance shall diminish or relieve Servicer from its duties and
obligations as set forth in this Agreement. The minimum coverage under any
such bond and insurance policy shall be at least equal to the corresponding
amounts required by Xxxxxx Mae in the Xxxxxx Xxx Xxxxxxx' and Servicers' Guide
or by Xxxxxxx Mac in the Xxxxxxx Xxx Xxxxxxx' and Servicer's Guide. Upon
request of any Owner, Servicer shall cause to be delivered to Owner evidence
of such bond and insurance policy.
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Section 4.13 Title, Management and Disposition of REO Property.
If title to a Mortgaged Property is acquired in foreclosure or by
deed in lieu of foreclosure, the deed or certificate of sale shall be taken in
the name of Owner.
Servicer shall either itself or through an agent selected by
Servicer, manage, conserve, protect and operate each REO Property (and may
temporarily rent the same) in the same manner that it manages, conserves,
protects and operates other foreclosed property for its own account, and in
the same manner that similar property in the same locality as the REO Property
is managed. Servicer shall cause each REO Property to be inspected promptly
upon the acquisition of title thereto and shall cause each REO Property to be
inspected at least annually thereafter. Servicer shall use reasonable efforts
to dispose of the REO Property in a commercially reasonable manner as soon as
possible. If Owner has notified Servicer in writing that an REO Property is
held as part of a REMIC, Servicer will make reasonable efforts to sell such
REO Property within the time necessary to preserve such REMIC status as
advised by Owner in the notice thereof.
Servicer shall deposit or cause to be deposited, on a daily basis
in the Custodial Account all revenues received with respect to each REO
Property and shall be permitted to withdraw therefrom, to the extent that
funds are received as rental or other similar income from such REO Property,
funds necessary for the proper operation, management and maintenance of the
REO Property, including the cost of maintaining any property insurance
pursuant to Section 4.10 hereof and the fees of any managing agent acting on
behalf of Servicer.
Servicer shall notify Owner of its receipt of a bona fide offer
from any REO Property. Each REO Disposition shall be carried out by Servicer
at such price and upon such terms and conditions as Owner shall approve. If
the proceeds from the REO Disposition are insufficient to reimburse Servicer
for any related unreimbursed Servicing Advances and Monthly Advances, Servicer
shall be entitled to withdraw any such deficiency from amounts on deposit in
the Custodial Account.
Section 4.14 Adjustments to Mortgage Interest Rates.
The Servicer shall make interest rate adjustments and payment
amount adjustments for each Adjustable Rate Mortgage Loan in accordance with
the terms of the related Mortgage Note and will deliver to the related
Mortgagor written notice of such adjustments in accordance with the terms of
such Mortgage Note and the requirements of applicable law.
Section 4.15 Subservicing Agreements Between Servicer and
Subservicers.
(a) Servicer may enter into Subservicing Agreements with
Subservicers for the servicing and administration of the Mortgage Loans. The
terms of any Subservicing Agreement shall not be inconsistent with any of the
provisions of this Agreement. Each Subservicer shall be (i) authorized to
transact business in the state or states in which the Mortgaged Properties
related to the Mortgage Loans such Subservicer is to service are situated, if
and to the extent required by applicable law to enable the Subservicer to
perform its obligations hereunder and under the Subservicing Agreement, and
(ii) a Xxxxxxx Mac - or Xxxxxx Xxx -approved mortgage servicer. Each
Subservicing Agreement must impose on the
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Subservicer requirements conforming to the provisions set forth in Section
4.20 and provide for servicing of the Mortgage Loans consistent with the terms
of this Agreement.
(b) As part of its servicing activities hereunder, Servicer, for
the benefit of Owner, shall enforce the obligations of each Subservicer under
the related Subservicing Agreement, including, without limitation, any
obligation to make advances in respect of delinquent payments as required by a
Subservicing Agreement. Such enforcement, including without limitation, the
legal prosecution of claims, termination of Subservicing Agreements, and the
pursuit of other appropriate remedies, shall be in such form and carried out
to such an extent and at such time as Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans.
Servicer shall pay the costs of such enforcement, to the extent, if any, that
such recovery (i) exceeds all amounts due in respect of the related Mortgage
Loans, or (ii) is from a specific recovery of costs, expenses or attorneys'
fees against the party against whom such enforcement is directed.
Section 4.16 Successor Subservicers.
Servicer shall be entitled to terminate any Subservicing Agreement
and the rights and obligations of any Subservicer pursuant to any Subservicing
Agreement in accordance with the terms and conditions of such Subservicing
Agreement. In the event of termination of any Subservicer, Servicer either
shall directly service the related Mortgage Loans or shall enter into a
Subservicing Agreement with a successor Subservicer which qualifies under
Section 4.15.
Section 4.17 Liability of Servicer.
Notwithstanding any Subservicing Agreement, any of the provisions
of this Agreement relating to agreements or arrangements between Servicer and
a Subservicer or reference to actions taken through a Subservicer or
otherwise, Servicer shall remain obligated and primarily liable to Owner for
the servicing and administering of the Mortgage Loans in accordance with the
provisions of Section 4.01 without diminution of such obligation or liability
by virtue of such Subservicing Agreements or arrangements or by virtue of
indemnification from the Subservicer and to the same extent and under the same
terms and conditions as if Servicer alone were servicing and administering the
Mortgage Loans. Servicer shall be entitled to enter into any agreement with a
Subservicer for indemnification of Servicer by such Subservicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
Section 4.18 Assumption or Termination of Subservicing Agreements.
In the event that Servicer or its successors shall for any reason
cease to be the Servicer of the Mortgage Loans under this Agreement, Owner or
its designee may, if Servicer does not terminate any Subservicing Agreement in
accordance with its terms, thereupon assume all of the rights and obligations
of Servicer under such Subservicing Agreement. Upon such assumption, Owner or
its designee shall be deemed to have assumed all of Servicer's interest
therein and to have replaced Servicer as a party to each Subservicing
Agreement to the same extent as if the Subservicing Agreements had been
assigned to the assuming party, except that Servicer shall not thereby be
relieved of any liability or obligations under the Subservicing
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Agreements, and Servicer shall continue to be entitled to any rights or
benefits, in each case, which arose prior to its termination as servicer.
Servicer at its expense shall, upon the request of Owner, deliver
to the assuming party all documents and records relating to each Subservicing
Agreement and the Mortgage Loans then being serviced and an accounting of
amounts collected and held by it and otherwise use reasonable efforts to
effect the orderly and efficient transfer of the Subservicing Agreements to
the assuming party.
Section 4.19 Servicing Accounts.
In those cases where a Subservicer is servicing a Mortgage Loan
pursuant to a Subservicing Agreement, the Subservicer shall be required to
establish and maintain a Subservicing Account which shall be an Eligible
Account. All amounts held in a Subservicing Account shall be held in trust for
the benefit of Servicer. The Subservicer shall be required to deposit into the
Subservicing Account not later than the first Business Day after receipt all
proceeds of Mortgage Loans received by the Subservicer, less its subservicing
compensation to the extent permitted by the Subservicing Agreement, and to
remit such proceeds to Servicer for deposit in the Custodial Account not later
than the tenth day of each month, or if such tenth day is not a Business Day,
the immediately succeeding Business Day. For purposes of this Agreement,
Servicer shall be deemed to have received payments on the Mortgage Loans when
the Subservicer has received such payments pursuant to the Subservicing
Agreement.
Section 4.20 Permitted Investments.
Servicer may invest the funds in the Custodial Account in
Permitted Investments, each of which shall mature not later than the Business
Day immediately preceding the Remittance Date next following the date of such
investment (except that if such Permitted Investment is an obligation of the
institution that maintains such account, then such Permitted Investment shall
mature not later than such Remittance Date) and shall not be sold or disposed
of prior to its maturity. All such Permitted Investments shall be registered
in the name of Servicer or its nominee. All income and gain realized from any
such investment as well as any interest earned on deposit in the Custodial
Account shall be for the benefit of Servicer, and shall be withdrawn by
Servicer on the related Remittance Date. Servicer shall deposit in the
Custodial Account (with respect to investments made hereunder of funds held
therein) an amount equal to the amount of any loss incurred in respect of any
such investment immediately upon realization of such loss without right of
reimbursement.
ARTICLE V
ADMINISTRATION AND SERVICING OF TRADING ACCOUNTS
Section 5.01 Servicer to Service Trading Accounts.
(a) Servicer represents and warrants that it will service and
administer the Trading Accounts, in accordance with the terms of (i) the
procedures it employs to administer Trading Accounts for its own benefit (as
the same may be amended from time to time) and (ii) the related Additional
Collateral Pledge Agreements.
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(b) Servicer shall be released from its obligations to administer
the Trading Accounts as applicable upon termination of the related Additional
Collateral Pledge Agreement.
(c) Servicer may, without consent of Owner, amend or modify an
Additional Collateral Pledge Agreement in any non-material respect to reflect
administrative or account changes.
(d) Notwithstanding anything to the contrary in this Agreement
(including without limitation the termination of the Servicing rights and/or
obligations of Servicer under Article XI of this Agreement), Servicer shall
service and administer, in accordance with the terms of this Agreement and
each Additional Collateral Pledge Agreement; it being understood and agreed
that only Servicer shall service and administer the related securities
accounts, lines of credit, mortgages, and guarantors with respect to
Additional Collateral Pledge Agreements.
(e) When the Collateral Base is less than the Loan Amount,
Servicer shall cause cash received upon exercise of foreclosure rights under
the Additional Collateral Pledge Agreement, if it has not been previously
applied to reduce the principal balance of the Mortgage Loan, to be deposited
into the Custodial Account.
Section 5.02 Agreements with Respect to the Surety Bond.
(a) Servicer represents and warrants to Owner that the Additional
Collateral Mortgage Loans are insured under the terms and provisions of the
Surety Bond, subject to the limitations set forth therein.
(b) Owner will cooperate with Servicer to transfer to Owner the
coverage of the Surety Bond in respect of Additional Collateral Mortgage
Loans.
(c) Owner and Servicer agree that the Surety Bond Issuer is a
third party beneficiary in respect of Servicer's obligations under this
Article V.
(d) With respect to the sale or potential sale of the Additional
Collateral Mortgage Loans, Owner shall not use, circulate, quote or otherwise
refer to the Surety Bond Issuer or the Surety Bond for any purpose, including
but not limited to, the registration, purchase and sale of securities, nor
file the Surety Bond with, or refer to it or to the Surety Bond Issuer, as
part of any registration statement or offering document, without the express
prior written consent of the Surety Bond Issuer as to both form and substance
of such disclosure.
ARTICLE VI
PAYMENTS TO OWNER
Section 6.01 Distributions.
On each Remittance Date, and subject to Section 6.03(c), Servicer
shall distribute to Owner (i) all amounts due on the Due Date immediately
preceding the related Remittance Date with respect to Scheduled/Scheduled
Mortgage Loans (which shall include all scheduled interest and principal), net
of charges against or withdrawals from the Custodial Account
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pursuant to clauses (ii) through (vi) of Section 4.05, plus any Principal
Prepayments received during the related Principal Prepayment Period, minus
(iii) any amounts attributable to Monthly Payments collected as to Mortgage
Loans serviced on a Scheduled/Scheduled basis but due on a Due Date or Due
Dates subsequent to the current Remittance Date.
Subject to Section 6.03(c), all distributions made to Owner on
each Remittance Date will be made to Owner of record on the preceding Record
Date, and shall be based on the Mortgage Loans owned and held by Owner, and
shall be made by wire transfer of immediately available funds to the account
of Owner at a bank or other entity having appropriate facilities therefor, or
if Owner shall have so notified Servicer, by check mailed to the address of
Owner as provided for in Section 12.06.
With respect to any remittance received by Owner on or after the
second Business Day following the Business Day on which such payment was due,
Servicer shall pay to Owner interest on any such late payment at an annual
rate equal to the rate of interest as is publicly announced from time to time
at its principal office by Chase Manhattan Bank, N.A., New York New York, as
its "prime" lending rate, adjusted as of the date of each change, plus one (1)
percentage point, but in no event greater than the maximum amount permitted by
applicable law. Such interest shall be paid by Servicer to Owner on the date
such late payment is made and shall cover the period commencing with the day
following such second Business Day and ending with the Business Day on which
such payment is made, both inclusive. Such interest shall be remitted along
with such late payment. The payment by Servicer of any such interest shall not
be deemed an extension of time for Payment or a waiver of any Event of Default
by Servicer.
Section 6.02 Statements to Owner.
Not later than the tenth (10th) day of each month, Servicer will
furnish to Owner a monthly remittance advice in an electronic format (i.e.
Microsoft Excel) substantially similar to Exhibit C, which monthly remittance
advice will be generated as of the expiration of the preceding month.
Servicer shall provide Owner with such information concerning the
Mortgage Loans as is necessary for Owner to prepare its federal income tax
return as Owner may reasonably request from time to time.
Section 6.03 Monthly Advances by Servicer.
(a) With respect to each Mortgage Loan subject to Section 6.03(c),
on each Remittance Date Servicer shall, pursuant to Section 6.01, remit to
Owner as to Scheduled/Scheduled Mortgage Loans, the total of all scheduled
Monthly Payments due on the preceding Due Date whether or not such Monthly
Payments were collected from the Mortgagor. Any amounts which are due but
uncollected shall be funded by using excess cash collections from the
Custodial Account.
(b) If the collections on deposit in the Custodial Account on the
Remittance Date are less than the amount of the required monthly remittance,
Servicer shall, subject to subsection (c) below, make a Monthly Advance by
depositing to the Custodial Account enough of its own funds to make the total
on deposit equal the full amount of the remittance due Owner.
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Servicer may reimburse itself for its advances from Mortgagor collections that
are subsequently deposited into the Custodial Account to the extent provided
in Section 4.05.
(c) If Servicer determines, in its reasonable judgment, that any
uncollected payment due from a Mortgagor that is due to be paid to Owner
pursuant to Section 6.01 would not be recoverable from Liquidation Proceeds or
other payments or recoveries (including Insurance Proceeds or Condemnation
Proceeds) on the related Mortgage Loan, then Servicer will ensure that the
amount considered to be nonrecoverable will not be funded from excess
collections or advanced by Servicer, and will therefore not be remitted to
Owner until the earlier to occur of (a) the repurchase of the Mortgage Loan by
Servicer, if applicable, or (b) the acquisition or disposition of title to the
related Mortgaged Property through foreclosure or otherwise, and then shall
only be paid to the extent of such recovery.
(d) With respect to any Mortgage Loans determined to be
unrecoverable and whose Monthly Payments are omitted from the scheduled
monthly remittance, Servicer shall deliver an Officer's Certificate to Owner
setting forth the basis of such determination.
Section 6.04 Compensating Interest.
Not later than the close of business on the Business Day preceding
each Remittance Date, Servicer shall from its own funds deposit in the
Custodial Account an amount equal to the lesser of (i) the aggregate of the
Prepayment Interest Shortfalls, if any, that exist in respect of the related
Principal Prepayment Period and (ii) the aggregate of the Servicing Fees for
the most recently ended calendar month.
If for any reason Servicer fails to process any Principal
Prepayment on a timely basis in accordance with Section 4.04(i), Servicer
shall from its own funds deposit in the Custodial Account, interest at the
Mortgage Interest Rate on the Principal Prepayment for the period the deposit
into the Custodial Account was delayed.
ARTICLE VII
GENERAL SERVICING PROCEDURE
Section 7.01 Assumption Agreements.
If Servicer acquires actual knowledge that a Mortgagor has
transferred or proposes to transfer the related Mortgaged Property, Servicer
shall enforce any related "due-on-sale" clause consistent with its practices
for mortgage loans it services for its own account. If Servicer elects not to
enforce such due-on-sale clause, Servicer may enter into an assumption
agreement with the party to whom such Mortgaged Property is to be or has been
conveyed. If any assumption fee is collected by Servicer for entering into an
assumption agreement, Servicer shall be entitled to retain a portion of such
fee up to an amount equal to 1% of the outstanding principal balance of the
related Mortgage Loan as additional servicing compensation, and shall deposit
into the Custodial Account any portion thereof that exceeds 1% of such
outstanding principal balance.
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Section 7.02 Satisfaction of Mortgages and Release of Mortgage
Files.
Upon the payment in full of any Mortgage Loan, Servicer shall
execute any document necessary to satisfy the Mortgage Loan and request
delivery to it of the portion of the Mortgage File held by Owner or the
Custodian. Upon receipt of such request, the related mortgage documents shall
be released to Servicer within seventy-two (72) hours and Servicer shall
prepare and process any satisfaction or release. No expense incurred in
connection with any instrument of satisfaction or deed of reconveyance shall
be chargeable to the Custodial Account or Owner.
To the extent that Owner acts as its own custodian, from time to
time and as appropriate for the servicing or foreclosure of the Mortgage Loan,
including for this purpose collection under any Primary Mortgage Insurance
Policy, Owner shall, upon request of Servicer and delivery to Owner of a
servicing receipt signed by a Servicing Officer, release the requested portion
of the Mortgage File held by Owner to Servicer. The Owner shall promptly
deliver the request to return the related Mortgage documents to the Custodian.
Servicer shall return the Mortgage documents to Owner when the need therefor
by Servicer no longer exists, unless the Mortgage Loan has been liquidated and
the Liquidation Proceeds relating to the Mortgage Loan have been deposited
into the Custodial Account or the Mortgage File or such document has been
delivered to an attorney, or to a public trustee or other public official as
required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially or
non-judicially. Upon receipt of a certificate of a Servicing Officer stating
that such Mortgage Loan was liquidated, the servicing receipt shall be
released by Owner to Servicer.
Section 7.03 Servicing Compensation.
In addition to any other fees to which Servicer is entitled
hereunder, as compensation for its services hereunder, Servicer shall be
entitled to a Servicing Fee payable with respect to each Mortgage Loan. As to
each Mortgage Loan, the Servicing Fee shall (i) be payable monthly from
payment of interest on such Mortgage Loan prior to the deposit of such
payments into the Custodial Account, (ii) accrue at the applicable Servicing
Fee Rate, and (iii) be computed on the basis of the same principal amount and
for the same period respecting which such interest payment was computed.
Servicer shall be entitled to recover accrued but unpaid Servicing Fees in
respect of any Mortgage Loan to the extent permitted by Section 4.05.
Servicer's right to the Servicing Fee shall not be transferred in whole or in
part except in connection with the transfer of all Servicer's obligations
under this Agreement. Servicing compensation in addition to the Servicing Fee,
in the form of assumption fees as provided in Section 7.01, interest paid on
funds deposited in the Escrow Account to the extent permitted by Section 4.06,
default interest in excess of the Mortgage Interest Rate and late payment
charges, in each case to the extent collected, shall be retained by Servicer
and shall not be required to be deposited into the Custodial Account. Servicer
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided for herein.
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Section 7.04 Annual Statement as to Compliance.
Servicer will deliver to Owner on or before March 15 of each year,
beginning with March 15 of the calendar year after the year in which the first
Closing Date occurs, an Officer's Certificate stating that (i) a review of the
activities of Servicer during the preceding calendar year and of performance
under this Agreement has been made under such officer's supervision, and (ii)
to the best of such officer's knowledge, based on such review, Servicer has
fulfilled all of its material obligations under this Agreement throughout such
year in all material respects, 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.
Section 7.05 Annual Independent Certified Public Accountants'
Servicing Report.
On or before March 15 of each year, beginning with March 15 of the
calendar year after the year in which the first Closing Date occurs, Servicer
at its expense shall cause a firm of independent certified public accountants
(which may also render other services to Servicer) to furnish a report to
Owner to the effect that certain Mortgage Loans serviced by Servicer were
included in the total population of Mortgage Loans subject to selection for
testing in such firm's examination of certain documents and records, that such
examination was conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers and that such examination disclosed
no items of material noncompliance with the provisions of the Uniform Single
Attestation Program for Mortgage Bankers, except for such items of
noncompliance as shall be set forth in such report.
Section 7.06 Owner's Right to Examine Servicer Records.
Owner shall have the right to examine and audit upon reasonable
prior written notice, during business hours or at such other times as might be
reasonable under applicable circumstances, any and all of the books, records,
documentation or other information of Servicer, or held by another for
Servicer or on its behalf or otherwise, which may be relevant to the
performance or observance by Servicer of the terms, covenants or conditions of
this Agreement.
Servicer shall provide to Owner and any supervisory agents or
examiners which may relate to Owner access to any documentation regarding the
Mortgage Loans which may be required by all applicable regulations. Such
access shall be afforded without charge, upon reasonable request, during
normal business hours and at the offices of Servicer.
Neither Owner nor Servicer shall, nor will they permit any of
their respective affiliates, employees, agents or representatives to, divulge
or disclose, directly or indirectly, any information concerning the Mortgage
Loans in violation of any law. Neither party shall, nor shall they permit any
of their respective affiliates, employees, agents or representatives to,
divulge or disclose, directly or indirectly, any information concerning the
business practices of the other party to this Agreement. This paragraph does
not apply to information which is not confidential or which has been published
or otherwise made available to the general public prior to the date of this
Agreement, or information required to be released under law or by or to any
regulatory,
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administrative or judicial body or agency or the furnishing by either party of
information to their respective affiliates, auditors, or attorneys.
Section 7.07 Annual Certification.
With respect to any Mortgage Loans sold in a Securitization
Transfer where Servicer is the servicer, Servicer agrees that on or before
March 10th of each year beginning March 10, 2005, Servicer shall deliver to
the depositor, the master servicer (if any) and the trustee for the
securitization trust in the Securitization Transfer, and their officers,
directors and affiliates, a certification in the form attached as Exhibit B
hereto, executed by the senior officer in charge of servicing at Servicer for
use in connection with any Form 10-K to be filed with the Securities and
Exchange Commission with respect to the securitization trust. Servicer shall
indemnify and hold harmless the depositor, the master servicer (if any) and
the trustee, and their respective officers, directors and affiliates, from and
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments and other costs and expenses arising out
of or based upon any breach of the Servicer's obligations under this paragraph
or any material misstatement or omission, negligence, bad faith or willful
misconduct of Servicer in connection therewith. If the indemnification
provided for in the preceding sentence is unavailable or insufficient to hold
harmless any indemnified party, then Servicer agrees that it shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities of such indemnified party in such
proportion as is appropriate to reflect the relative fault of such indemnified
party, on the one hand, and Servicer, on the other, in connection with a
breach of the Servicer's obligations under this paragraph or any material
misstatement or omission, negligence, bad faith or willful misconduct of
Servicer in connection therewith.
ARTICLE VIII
REPORTS TO BE PREPARED BY COMPANY
Section 8.01 Servicer Shall Provide Information as Reasonably
Required.
During the terms of this Agreement Servicer shall furnish any
reports, or documentation that Owner may reasonably request. Reports requested
may include reports not specified or otherwise required by this Agreement, for
example, reports with respect to REO Properties, or reports required to comply
with any regulations regarding any supervisory agents or examiners of Owner.
All reports will be delivered in accordance with Owner's reasonable
instructions and directions. If the reports or other information requested
will require Servicer to incur additional costs or expenses outside of its
normal servicing procedures, Owner agrees to reimburse Servicer for those
costs and expenses. Servicer agrees to execute and deliver all such
instruments and take all such action as Owner, from time to time, may
reasonably request in order to effectuate the purpose and to carry out the
terms of this Agreement.
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ARTICLE IX
SERVICER
Section 9.01 Indemnification; Third Party Claims.
(a) Each party hereto agrees to indemnify the other party and hold
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, fees and
expenses that the other party may sustain in any way related to the breach of
such party in performing its duties and obligations under this Agent.
(b) Servicer shall (i) promptly notify Owner if a material claim
is made by any party with respect to this Agreement or the Mortgage Loans,
(ii) assume the defense of any such claim and pay all expenses in connection
therewith, including attorneys' fees, and (iii) promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or Owner in
respect of such claim. Servicer shall follow any written instructions received
from Owner in connection with such claim. Owner shall promptly reimburse
Servicer for all amounts paid or advanced by it pursuant to the preceding
sentence, except as to amounts as to which Servicer is required to indemnify
Owner pursuant to Section 3.01.
Section 9.02 Merger or Consolidation of Servicer.
Servicer will keep in full effect its existence, rights and
franchises as a corporation, and will obtain and preserve its qualification to
do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement. Any Person into which Servicer way be merged
or consolidate, or any corporation resulting from any merger, conversion or
consolidation to which Servicer shall be a party, or any Person succeeding to
the business of Servicer, shall be the successor of Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
Section 9.03 Limitation on Liability of Servicer and Others.
Neither Servicer nor any of the officers, employees or agents of
Servicer shall be under any liability to any Owner for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect Servicer or any such person against any breach of warranties
or representations made herein, or failure to perform its obligations
substantially in accordance with any standard of care set forth in this
Agreement, or any liability which would otherwise be imposed by of any breach
of the terms and conditions of this Agreement. Servicer and any officer,
employee or agent of Servicer may rely in good faith on any document of any
kind appearing to be properly executed and submitted by any Person respecting
any matters arising hereunder. Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Mortgage Loans in accordance with this Agreement and
which in its opinion may involve it in any expenses or liability; provided,
however, that Servicer may, with the consent of Owner, undertake any such
action which it may
31
deem necessary or desirable in respect to this Agreement and the rights and
duties of the parties hereto. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities for which Owner will be liable. Servicer shall be entitled to be
reimbursed therefor from Owner upon written demand.
Section 9.04 Servicer Not to Resign.
Subject to Section 12.04, Servicer shall not resign from the
obligations and duties hereby imposed on it except (i) by mutual consent of
Servicer and Owner, (ii) upon the determination that its duties hereunder are
no longer permissible under applicable law and such incapacity cannot be cured
by Servicer (any such determination permitting the resignation of Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to
Owner), (iii) following any breach of this Agreement by Owner, or (iv) in
connection with a sale of substantially all of the assets of Servicer. No such
resignation shall become effective until a successor shall have assumed
Servicer's responsibilities and obligations hereunder in the manner provided
in Section 12.01.
Section 9.05 No Transfer of Servicing.
Servicer shall not either assign this Agreement or the servicing
hereunder or delegate its rights or duties hereunder or any portion thereof,
or sell or otherwise dispose of all or substantially all of its property or
assets, without the prior written approval of the Owner, which consent shall
not be unreasonably withheld.
Any successor appointed as provided herein shall be an institution
which is a Xxxxxx Xxx and Xxxxxxx Mac approved servicer in good standing,
which has a net worth of at least $15,000,000 and shall execute, acknowledge
and deliver to Owner an instrument accepting such appointment, whereupon such
successor shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of Servicer, with like effect as
if originally named as a party to this Agreement.
ARTICLE X
DEFAULT
Section 10.01 Events of Default.
If one or more of the following "Events of Default" by Servicer
shall occur and be continuing:
(i) any failure by Servicer to remit to Owner any payment required
to be made under the terms of this Agreement which continues unremedied
for a period (3) Business Days after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given
to Servicer by Owner; or
(ii) failure on the part of Servicer duly to observe or perform in
any material respect any other of the covenants or agreements on the
part of Servicer set forth in this Agreement which continues unremedied
for a period of thirty (30) days (except that such
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number of days shall be fifteen (15) in the case of a failure to pay any
premium for any insurance policy required to be maintained under this
Agreement) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to Servicer by
Owner; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator,
receiver or liquidator in any insolvency readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered
against Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of sixty (60) days; or
(iv) Servicer shall consent to the appointment of a conservator,
receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or
relating to Servicer or of or relating to all or substantially all of
its property; or
(v) Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for
the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(vi) Servicer ceases to be eligible to sell Mortgage Loans to and
service Mortgage Loans for Xxxxxx Xxx and Xxxxxxx Mac, and continues to
be ineligible to sell Mortgage Loans to and service Mortgage Loans for
Xxxxxx Mae and Xxxxxxx Mac for a period of sixty (60) days after the
date on which written notice of such ineligibility shall have been given
to Servicer by Xxxxxx Mae and Xxxxxxx Mac;
(vii) except as set forth in Section 9.05, Servicer attempts to
assign its right to servicing compensation hereunder or Servicer
attempts, without the consent of the Owner, to sell or otherwise dispose
of all or substantially all of its property or assets or to assign this
Agreement or the servicing responsibilities hereunder or to delegate its
duties hereunder or any portion thereof;
then, and in each and every such case, so long as an Event of Default shall
not have been remedied, Owner, by notice in writing to Servicer, in addition
to whatever rights Owner may have at law or in equity to damages, including
injunctive relief and specific performance, may terminate all the rights and
obligations of Servicer under this Agreement and in and to the Mortgage Loans
and the proceeds thereof other than, with respect to any Additional Collateral
Mortgage Loan, the obligation to administer the related Additional Collateral
Pledge Agreement. On or after the receipt by Servicer of such written notice,
(i) all authority and power of Servicer under this Agreement, whether with
respect to the Mortgage Loan or otherwise, shall pass to and be vested in the
successor appointed pursuant to Section 12.01, except with respect to any
related Additional Collateral Pledge Agreement, and (ii) upon further written
request from Owner, Servicer shall prepare, execute and deliver, any and all
documents and other instruments, deliver to the successor all Mortgage Files,
and do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, including the transfer and
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endorsement or assignment of the Mortgage Loans and related documents, or
otherwise, at Servicer's sole expense. Servicer agrees to cooperate with Owner
and such successor in effecting the termination of Servicer's responsibilities
and rights hereunder as provided above, including, without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by Servicer to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans.
Section 10.02 Waiver of Defaults.
Owner may waive any default by Servicer in the performance of its
obligations hereunder and its consequences. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so waived.
ARTICLE XI
TERMINATION
Section 11.01 Termination.
The respective obligations and responsibilities of Servicer shall
terminate upon: (i) the later the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan or the disposition of
all REO Property and the remittance of all funds due hereunder, (ii) mutual
consent of Servicer and Owner in writing, (iii) at the election of Owner or
Servicer at any time upon thirty (30) days prior written notice to the other
if the aggregate outstanding principal balance of all Mortgage Loans subject
to this Agreement shall be less than $5,000,000, (iv) a resignation permitted
by Section 9.04 hereof, or (v) the repurchase by Servicer of all Mortgage
Loans and all REO Property at a price equal to 100% of the outstanding
principal balance of each Mortgage Loan on the day of repurchase, plus accrued
interest thereon at the Mortgage Loan Remittance Rate to the first day of the
month following repurchase, plus the appraised value of any such REO Property
determined at the expense of Servicer by an appraiser mutually agreed upon by
Servicer and Owner.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Successor to Servicer.
Prior to termination of Servicer's responsibilities and duties
under this Agreement pursuant to Sections 9.04, 10.01, 11.01 or 12.04, Owner
shall (i) succeed to and assume all of Servicer's responsibilities, rights,
duties and obligations under this Agreement, or (ii) appoint a successor who
is a Fannie Mac / Xxxxxxx Mac approved servicer having a net worth of not less
than $15,000,000 and which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of Servicer under this Agreement
prior to the termination of Servicer's responsibilities, duties and
liabilities under this Agreement.
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In connection with such appointment and assumption, Owner may make
such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree. In the event that
Servicer's duties, responsibilities and liabilities under this Agreement
should be terminated pursuant to one of the aforementioned Sections, Servicer
shall discharge such duties and responsibilities during the period from the
date it acquires knowledge of such termination until the effective date
thereof with the same degree of diligence and prudence which it is obligated
to exercise under this Agreement, and shall take no action whatsoever that
might impair or prejudice the rights or financial condition of its successor.
The resignation or removal of Servicer pursuant to the aforementioned Sections
shall not become effective until a successor shall be appointed pursuant to
this Section and shall in no event relieve Servicer of the representations and
warranties made pursuant to Section 3.01 hereof or Section 5 of the Purchase
Agreement and the remedies available to Owner hereunder and thereunder.
Any successor appointed as provided in this Section 12.01 shall
execute, acknowledge and deliver to Servicer and to Owner an instrument
accepting such appointment, whereupon such successor shall become fully vested
with all the rights, powers, duties, responsibilities, obligations and
liabilities of Servicer, with like effect as if originally named as a party to
this Agreement. Any termination or resignation of Servicer or termination of
this Agreement pursuant to Section 9.04, 10.01, 11.01, or 12.04 shall not
affect any claims that Owner may have against Servicer arising prior to any
such termination or resignation.
Servicer shall in a timely and reasonable manner deliver to the
successor the funds in the Custodial Account and the escrow Account and the
Mortgage Files and related documents and statements held by it hereunder and
Servicer shall account for all funds. Servicer shall execute and deliver such
instruments and do such other things all as may reasonably be required to more
fully and definitely vest and confirm in the successor all such rights,
powers, duties and responsibilities of Servicer. The successor shall make
arrangements as it may deem appropriate to reimburse Servicer for amounts
Servicer actually expended pursuant to this Agreement which Servicer is
entitled to retain hereunder and which would otherwise have been reimbursable
to Servicer pursuant to this Agreement but for the appointment of the
successor servicer.
Section 12.02 Amendment.
This Agreement may be amended from time to time by Servicer and
Owner only by written agreement signed by Servicer and Owner. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought.
Section 12.03 Assignments.
The Assignments shall not be recorded for so long as Servicer is
Servicer under this Agreement. In the event that Servicer shall assign this
Agreement to a Person (other than as provided in Section 9.02 or as a result
of an assignment to an affiliate of Servicer), then, at Owner's request, the
Assignments of Mortgages shall be recorded in the name of Owner or in the
35
name of a Person designated by Owner in all appropriate public offices for
real property records. All recording fees related to such recordation
hereunder shall be paid by Owner.
Section 12.04 Assignment of Servicing Rights.
Servicer may assign the servicing rights with respect to the
Mortgage Loans upon the written consent of Owner, which consent shall not be
unreasonably withheld or delayed; provided, however, Servicer may, without the
consent of Owner enter into one or more Subservicing Agreements relating to
the Mortgage Loans; further provided however that notwithstanding any
subservicing arrangement, Servicer shall remain liable to Owner for all
obligations and responsibilities set forth in this Agreement.
Section 12.05 Governing Law.
This Agreement is to be governed by, and construed in accordance
with, the internal laws (as compared to conflicts of law provisions) of the
State of New York. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge
or termination is sought.
Section 12.06 Assignment by Owner.
The Owner shall have the right, without the consent of Servicer
hereof, to assign, in whole or in part, its interest under this Agreement with
respect to some or all of the Mortgage Loans, and designate any person to
exercise any rights of the Owner hereunder, and the assignee or designee shall
accede to the rights and obligations hereunder of the Owner with respect to
such Mortgage Loans. All references to the Owner in this Agreement shall be
deemed to include its assignee or designee to the extent of such assignment.
Except as otherwise expressly provided herein, this Agreement shall not be
assigned, pledged or hypothecated by Servicer to a third party without the
consent of the Owner. This Agreement shall bind and inure to the benefit of
and be enforceable by Servicer and the Owner and the respective permitted
successors and assigns of Servicer and the successors and assigns of the
Owner.
Section 12.07 Notices.
Any notices or other communications permitted or required
hereunder shall be in writing and shall be deemed conclusively to have been
duly given if personally delivered, sent by overnight courier, or mailed by
registered mail, postage prepaid, and return receipt requested, or transmitted
by telex or telegraph and confirmed by a similar mailed writing, or otherwise
received, if to Owner, addressed to Owner at 0000 Xxxxxxxx, Xxx Xxxx, XX
00000, Attention: Whole Loan Operations Manager or to such other address as
Owner may designate in writing to Servicer, and, if to Servicer, addressed to
Xxxxxx Xxxxxxx Xxxx Xxxxxx Credit Corporation at 0000 Xxxx Xxxx Xxxx,
Xxxxxxxxxx, XX 00000, Attention: Law Division, Secondary Marketing, at the
same address, or to such other address as Servicer may have designated in
writing to Owner.
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Section 12.08 Severabilitv Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, the
invalidity of any such covenant, agreement, provision or term of this
Agreement shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
Section 12.09 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
Section 12.10 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include
the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a document are
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same
Section in which the reference appears, and this rule shall also apply
to Paragraphs and other subdivisions;
(v) the words "herein", "hereof', "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular provision; and
(vi) the terms "include" or "including" shall mean without
limitation by reason of enumeration.
Section 12.11 Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (i) consents, waivers and modifications which may
hereafter be executed (ii) documents received by any party at the closing, and
(iii) financial statements, certificates and other information previously or
hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, micro-card, miniature photographic or other similar process. The
parties agree that any such reproduction shall be admissible in evidence as
the original itself in any judicial or administrative proceeding, whether or
not the original is in existence and whether or not such
37
reproduction was made by a party in the regular course of business, and that
any enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
Section 12.12 Successors and Assigns.
The provisions of this Agreement shall be binding upon and inure
to the benefit of the respective successors and permitted assigns of the
parties hereto.
Section 12.13 Counterparts.
This Agreement may be executed in several counterparts, each of
which shall constitute an original, but all of which together, shall
constitute one instrument notwithstanding that all parties are not signatories
to the same counterparts.
Section 12.14 Non-Solicitation.
(a) From and after the Closing Date, the Servicer agrees that it
will not take any action or cause any action to be taken by its agents to
solicit the Mortgagor under any Mortgage Loan to refinance a Mortgage Loan, in
whole or in part, without the prior written consent of Owner. It is understood
and agreed that promotions for refinance undertaken by the Servicer or its
agents that are directed to segments of the general public, or to all or
segments of the clients of Xxxxxx Xxxxxxx & Co. and its affiliates which may
include Mortgagors under any Mortgage Loan, including, without limitation,
direct marketing solicitations and newspaper, radio and television
advertisements, shall not constitute a solicitation under the terms of this
Agreement; provided, however, that no segment shall consist exclusively of
such Mortgagors.
(b) From and after the Closing Date, the Owner agrees that it will
not take any action or cause any action to be taken by its agents to solicit
the Mortgagor under any Mortgage Loan for any purpose, without the prior
written consent of Servicer; provided that, the foregoing shall not restrict
the Owner's right to contact, with the prior knowledge of the Servicer, any
Mortgagor, to the extent deemed reasonably necessary by the Owner to resolve
issues related to loss mitigation, in connection with such Mortgagor's
Mortgage Loan. It is understood and agreed that promotions for any purpose
undertaken by the Owner or its agents that are directed to segments of the
general public, or to all or segments of the clients of the Owner and its
affiliates which may include Mortgagors under any Mortgage Loan, including,
without limitation, direct marketing solicitations and newspaper, radio and
television advertisements, shall not constitute a solicitation under the terms
of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first set forth above.
Xxxxxx Xxxxxxx Mortgage Capital Inc.
By:
----------------------------------
Name:
Title:
Xxxxxx Xxxxxxx Xxxx Xxxxxx Credit
Corporation
By:
----------------------------------
Name:
Title:
EXHIBIT A
FORM OF LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that _________________ ("Owner")
having its principal place of business at ____________________ hereby
constitutes and appoints Xxxxxx Xxxxxxx Xxxx Xxxxxx Credit Corporation
("Servicer"), a Delaware corporation, having its principal place of business
at 0000 Xxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, by and through any of its
Vice Presidents or more senior officers, its true and lawful Attorney-in-Fact,
in its name, place and stead and for its benefit, in connection with all
residential mortgage loans serviced by Servicer for Owner for the purposes of
performing all acts and executing all documents in the name of Owner necessary
and incidental to servicing said loans, including but not limited to:
(1) Foreclosing delinquent loans or discontinuing such foreclosure
proceedings, executing claims for insurance benefits under private mortgage
insurance policies and endorsing related proceeds checks made payable to
Owner;
(2) Selling, transferring or otherwise disposing of real property acquired
through foreclosure or otherwise, including but not limited to executing all
contracts, agreements, deeds, assignments or other instruments reasonably
necessary or advisable to effect such sale, transfer or disposition, and
receiving proceeds and endorsing checks made payable to the order of Owner
from such proceedings;
(3) Preparing, executing and delivering satisfactions, cancellations,
discharges, or full or partial releases of lien, subordination agreements,
modification agreements, assumption agreements, and substitutions of trustees
under deeds of trust;
(4) Endorsing promissory notes and executing assignments of mortgages, deeds
of trust, deeds to secure debt and other security instruments securing said
promissory notes in connection with loans for which Servicer has received full
payment of all outstanding amounts due; and
(5) Any and all such other acts of any kind and nature whatsoever that are
necessary and prudent to service the loans.
Owner further grants to Servicer full power and authority to do and perform
all acts necessary for Servicer to carry into effect the power or powers
granted by or under this Limited Power of Attorney as fully as Owner might or
could do with the same validity as if all and every such act had been herein
particularly stated, expressed and especially provided for, and hereby
ratifies and confirms all that Servicer shall lawfully have done, do, or cause
to be done by virtue of the powers and authority and contemplated hereby. This
Limited Power of Attorney shall be effective as of _____________, ____.
Third parties without actual notice may rely upon the exercise of the power
granted under this Limited Power of Attorney, and may be satisfied that this
Limited Power of Attorney shall continue in full force and effect until
revoked in writing by Owner. Third parties without actual notice may rely upon
a certificate to the effect set forth in the preceding sentence given by
Servicer.
ATTEST
By:
Name: Name:
Title: Title:
Corporate Seal:
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of ____________, 20_, before me, the undersigned,
a Notary Public in and for said county and state, personally appeared
_______________________ and ______________________, personally known to me to
be the persons who executed the within instrument as _____________________ and
_____________________, respectively, on behalf of the corporation therein
named, and they duly severally acknowledged that they reside at
______________________________________ and that said instrument is the act and
deed of said corporation, and that they, being authorized to do so, executed
and delivered said instrument and affixed the corporate seal thereto for the
purposes therein contained.
Witness my hand and official seal:
_____________________________________
Notary Public State of ______________
My Commission Expires:_______________
EXHIBIT B
ANNUAL CERTIFICATION
Re: [______________] (the "Trust"), Mortgage Pass-Through Certificates,
Series [_______], issued pursuant to the Pooling and Servicing
Agreement, dated as of [___________], 200_ (the "Pooling and Servicing
Agreement"), among [___________], as depositor (the "Depositor"),
[___________], as trustee (the "Trustee"), [_____________], as servicer
(the "Servicer"), and [ ______________], as responsible party
I, [identify the certifying individual], certify to [the
Depositor], [the Trustee], [the Servicer] and their officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
(a) Based on my knowledge, the information 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 Depositor] [the Trustee] [the Servicer] during the preceding
calendar year 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;
(b) Based on my knowledge, the servicing information required to
be provided to [the Depositor] [the Trustee] [the Servicer] by the
Company under this Agreement has been provided to [the Depositor] [the
Trustee] [the Master Servicer];
(c) I am responsible for reviewing the activities performed by the
Company under the Agreement and based upon the review required by this
Agreement, and except as disclosed in the Annual Statement of Compliance
and the Annual Independent Public Accountant's Servicing Report
submitted to the [the Depositor] [the Trustee] [the Master Servicer],
the Company has, as of the date of this certification, fulfilled its
obligations under this Agreement; and
(d) I have disclosed to [the Depositor] [the Trustee] [the Master
Servicer] all significant deficiencies relating to the Company's
compliance with the minimum servicing standards in accordance with a
review conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar standard as set forth in the
Agreement.
Date:
------------------------------------
[Signature]
[Title]
EXHIBIT C
DATA FILE
