Exhibit 99.2
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into as
of the 1st day of February, 2003, by and between Xxxxxxx Xxxxx Credit
Corporation (the "Seller"), and CENDANT MORTGAGE CORPORATION (the "Company"),
recites and provides as follows:
RECITALS
WHEREAS, the Seller has conveyed certain mortgage loans (the "Mortgage
Loans") identified on Exhibit B to Xxxxxxx Xxxxx Mortgage Investors, Inc. (the
"Depositor"), which in turn has conveyed the Mortgage Loans to Xxxxx Fargo Bank
Minnesota, National Association, as Trustee (the "Trustee"), pursuant to a trust
agreement dated as of February 1, 2003 (the "Trust Agreement").
WHEREAS, the Mortgage Loans are currently being serviced by the Company
for the Seller pursuant to the Portfolio Servicing Agreement between the Seller
and the Company as amended by Amendment Agreement No. 1 thereto (as amended, the
"Servicing Agreement"), attached as Exhibit C.
WHEREAS, the Seller desires that the Company continue to service the
Mortgage Loans, and the Company has agreed to do so.
WHEREAS, the Seller and the Company agree that the provisions of the
Servicing Agreement, as amended hereby with respect to the Mortgage Loans, shall
continue to apply to the Mortgage Loans, and shall govern the Mortgage Loans for
so long as such Mortgage Loans remain subject to the provisions of the Trust
Agreement.
WHEREAS, the Seller and the Company intend that the Depositor and the
Trustee are each intended third party beneficiaries of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Seller and the Company hereby agree as
follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this Agreement,
including Exhibit A hereto and any provisions of the Servicing Agreement
incorporated by reference herein (regardless of whether such terms are defined
in the Servicing Agreement), shall have the meanings ascribed to such terms in
the Trust Agreement.
2. Servicing. The Company agrees, with respect to the Mortgage Loans, to
perform and observe the duties, responsibilities and obligations that are to be
performed and observed under the provisions of the Servicing Agreement, except
as otherwise provided herein and on Exhibit A hereto, and that the provisions of
the Servicing Agreement, as so modified, are and shall be a part of this
Agreement to the same extent as if set forth herein in full.
3. Termination of Company. The Trustee shall have the same rights as the
Seller to enforce the obligations of the Company under the Servicing Agreement
and the term "Owner" as used in the Servicing Agreement in connection with any
rights of the Owner shall refer to the Trust Fund or, as the context requires,
the Trustee acting in its capacity as agent for the Trust Fund, except as
otherwise specified in Exhibit A hereto. The Trustee shall be entitled to
terminate the rights and obligations of the
Company under this Agreement upon the failure of the Company to perform any of
its obligations under this Agreement, which failure results in an Event of
Default as provided in the Servicing Agreement. Notwithstanding anything herein
to the contrary, in no event shall the Trustee assume any of the obligations of
the Seller under the Servicing Agreement except as provided in this Agreement or
the Trust Agreement; and in connection with the performance of the Trustee's
duties hereunder, the parties and other signatories hereto agree that the
Trustee shall be entitled to all of the rights, protections and limitations of
liability afforded to the Trustee under the Trust Agreement.
4. Compliance with HOEPA. The Company is currently in compliance with the
Home Ownership and Equity Protection Act ("HOEPA") and will continue to operate
its business in compliance with HOEPA.
5. No Representations. Neither the Company nor the Trustee shall be
obligated or required to make any representations and warranties regarding the
characteristics of the Mortgage Loans (other than those company representations
and warranties of the Company made in the Servicing Agreement which are hereby
restated as of the Closing Date) in connection with the transactions
contemplated by the Trust Agreement and issuance of the Certificates issued
pursuant thereto.
6. Notices. All notices and communications between or among the parties
hereto (including any third party beneficiary thereof) or required to be
provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
All notices required to be delivered to the Trustee under this
Agreement shall also be delivered to the Trustee, with a copy to the Depositor,
at the following address:
Xxxxx Fargo Bank Minnesota, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC
2003-A
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All notices required to be delivered to the Seller hereunder shall
be delivered to the Seller at the following address:
Xxxxxxx Xxxxx Credit Corporation
0000 Xxxx Xxxx Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC
2003-A
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to the Depositor hereunder
shall be delivered to the Depositor at the following address:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
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000 Xxxxx Xxxxxx
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC
2003-A
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to the Company hereunder shall
be delivered to the Company at the following address:
Cendant Mortgage Corporation
0000 Xxxxxxxxxx Xxxx
Xx. Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING NEW YORK OR
OTHER CHOICE OF LAW RULES TO THE CONTRARY.
8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
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Executed as of the day and year first above written.
XXXXXXX XXXXX CREDIT CORPORATION,
as Seller
By: ______________________________________
Name: Xxxxx Xxxxxx
Title: Vice President
CENDANT MORTGAGE CORPORATION,
as Company
By:_______________________________________
Name:
Title:
ACKNOWLEDGED BY:
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor
By:_________________________________
Name: Xxxxxxx Xxxxxx
Title: President
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:_________________________________
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to the Servicing Agreement
1. Unless otherwise specified herein, for purposes of this Agreement, any
provisions of the Servicing Agreement, including definitions, relating to
(i) representations and warranties of the Owner and (ii) the sale and
purchase of the Mortgage Loans shall be disregarded.
2. For reporting purposes, a Mortgage Loan is "delinquent" when any
payment contractually due thereon has not been made by the close of
business on the Due Date therefor. Such Mortgage Loan is "30 days
Delinquent" if such payment has not been received by the close of
business on the corresponding day of the month immediately succeeding
the month in which such payment was first due, or, if there is no such
corresponding day (e.g., as when a 30-day month follows a 31-day month
in which a payment was due on the 31st day of such month), then on the
last day of such immediately succeeding month. Similarly for "60 days
Delinquent" and the second immediately succeeding month and "90 days
Delinquent" and the third immediately succeeding month.
3. A new definition of "Adverse REMIC Event" is hereby added to Article I
to read as follows:
Adverse REMIC Event: shall have the meaning set forth in Section
10.01(f) of the Trust Agreement.
4. The definition of "Custodial Funds Account" is hereby amended to entitle
such account as "Xxxxx Fargo Bank Minnesota, National Association, in
trust for the registered holders of Xxxxxxx Xxxxx Mortgage Investors Trust
Series MLCC 2003-A Certificates." The following sentence is added to the
end of such definition: "The Custodial Funds Account shall be an Eligible
Account."
5. A new definition of "Custodial Agreement" is hereby added to Article I
to read as follows:
Custodial Agreement shall have the meaning set forth in the Trust
Agreement.
6. A new definition of "Custodian" is hereby added to Article I to read as
follows:
Custodian means Xxxxx Fargo Bank Minnesota, National Association,
any successor in interest or any successor custodian appointed
pursuant to the Custodial Agreement.
7. The definitions "Due Period" and "Eligible Account" are hereby added to
Article I and each shall have the meaning set forth in the Trust
Agreement.
8. The definition of "Escrow Account" in Article I is hereby amended to
entitle such an account as "Xxxxx Fargo Bank Minnesota, National
Association in trust for the registered holders of Xxxxxxx Xxxxx Mortgage
Investors Trust Series MLCC 2003-A Certificates." The following sentence
is hereby added to the end of such definition: "The Escrow Account shall
be an Eligible Account."
9. The definition of "Mortgage Loan Schedule" in Article I is hereby
amended in its entirety to read as follows:
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Mortgage Loan Schedule: The schedule of Mortgage Loans setting forth
certain information with respect to the Mortgage Loans, which
Mortgage Loan Schedule is attached as Exhibit B to this Agreement.
10. A new definition of "Opinion of Counsel" is hereby added to Article I
to read as follows:
Opinion of Counsel A written opinion of counsel, who may be an
employee of the Company, that is reasonably acceptable to the
Trustee and the Depositor provided that any Opinion of Counsel
relating to (a) qualification of the Mortgage Loans in a REMIC or
(b) compliance with the REMIC Provisions, must be an opinion of
counsel reasonably acceptable to the Trustee and the Depositor, who
(i) is in fact independent of the Seller, the Company and the
Depositor of the Mortgage Loans, (ii) does not have any material
direct or indirect financial interest in the Company or the
Depositor of the Mortgage Loans or in an affiliate of any such
entity and (iii) is not connected with the Seller, the Company or
the Depositor of the Mortgage Loans as an officer, employee,
director or person performing similar functions.
11. A new definition of "REMIC Provisions" is hereby added to Article I to
read as follows:
REMIC Provisions: The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear
at sections 860A through 860G of Subchapter M of Chapter 1 of the
Code, and related provisions, and regulations, including proposed
regulations and rulings, and administrative pronouncements
promulgated thereunder, as the foregoing may be in effect from time
to time.
12. The definition of "REO Property" in Article I is hereby amended by
replacing the word "Owner" with "Trustee on behalf of the Trust Fund".
14. Section 2.01(d) is hereby amended by replacing the word "Owner's" with
"Depositor's" and by deleting the second and third sentence.
15. Section 2.01(e) is hereby amended by replacing the word "Owner" with
"Trustee and/or the Depositor."
16. Section 2.01(f) is hereby amended by replacing the word "Owner" with
"Seller."
17. Section 2.01(i) is hereby amended by replacing "Owner" with "Custodian"
in the first sentence.
18. Section 2.01 (l) is hereby deleted.
19. Section 2.01(m) is hereby added to read as follows:
(m) the Company shall not, unless default by the related Mortgagor
has occurred or is, in the reasonable judgment of the Company,
imminent, knowingly permit any modification, waiver or amendment of
any material term of any Mortgage Loan (including but not limited to
the interest rate, the principal balance, the amortization schedule,
or any other term affecting the amount or timing of payments on the
Mortgage Loan or the collateral therefor) unless the Company shall
have provided to the Depositor and the Trustee an Opinion of Counsel
in writing to the effect that such modification, waiver or amendment
would not cause an Adverse REMIC Event.
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20. Section 2.02(a) is amended by adding the following:
In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage Loan,
the Company shall dispose of such REO Property not later than the
end of the third taxable year after the year of its acquisition by
the Trust Fund unless the Company has applied for and received a
grant of extension from the Internal Revenue Service to the effect
that, under the REMIC Provisions and any relevant proposed
legislation and under applicable state law, the Trust Fund may hold
REO Property for a longer period without adversely affecting the
REMIC status of such REMIC or causing the imposition of a federal or
state tax upon such REMIC. If the Company has received such an
extension, then the Company shall continue to attempt to sell the
REO Property for its fair market value for such period longer than
three years as such extension permits (the "Extended Period"). If
the Company has not received such an extension and the Company is
unable to sell the REO Property within the period ending 3 months
before the end of such third taxable year after its acquisition by
the Trust Fund or if the Company has received such an extension, and
the Company is unable to sell the REO Property within the period
ending three months before the close of the Extended Period, the
Company shall, before the end of the three year period or the
Extended Period, as applicable, (i) purchase such REO Property at a
price equal to the REO Property's fair market value or (ii) auction
the REO Property to the highest bidder (which may be the Company) in
an auction reasonably designed to produce a fair price prior to the
expiration of the three-year period or the Extended Period, as the
case may be. The Trustee shall sign any document prepared by the
Company or take any other action reasonably requested by the Company
which would enable the Company, on behalf of the Trust Fund, to
request such grant of extension.
Notwithstanding any other provisions of this Agreement, no REO
Property acquired by the Trust Fund shall be rented (or allowed to
continue to be rented) or otherwise used by or on behalf of the
Trust Fund in such a manner or pursuant to any terms that would: (i)
cause such REO Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code; or (ii)
subject the Trust Fund to the imposition of any federal income taxes
on the income earned from such REO Property, including any taxes
imposed by reason of Sections 860F or 860G(c) of the Code, unless
the Company has agreed to indemnify and hold harmless the Trust Fund
with respect to the imposition of any such taxes."
21. Section 2.03 is hereby deleted.
22. Section 2.04 is hereby amended by replacing the word "Owner" with
"Depositor and/or Trustee."
23. Section 2.05(a) is hereby amended by deleting the second sentence
thereof.
24. Section 2.08 is hereby replaced with the following:
Company Not to Resign. The Company shall neither assign this
Agreement or the servicing hereunder or delegate its rights or
duties hereunder or any portion hereof (to other than a third party
in the case of outsourcing routine tasks such as taxes, insurance
and property inspection, in which case the Company shall be fully
liable for such tasks as if the Company performed them itself) nor
sell or otherwise dispose of all or substantially all of its
property or assets without the prior written consent of the Trustee
and the Depositor, which consent shall be granted or withheld in the
reasonable discretion of such
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parties, provided, however, that (i) the Company may assign its
rights and obligations hereunder without prior written consent of
the Trustee and the Depositor to any entity that is directly owned
or controlled by the Company, and the Company guarantees the
performance of such entity hereunder (ii) the Company is no longer
permitted to act as Company under applicable law as evidenced by an
opinion of counsel or (iii) upon a sale of its servicing rights with
respect to the Mortgage Loans with the prior written consent of the
Seller. In the case of item (i) above, the Company shall provide the
Trustee and the Depositor with a written statement guaranteeing the
successor entity's performance of the Company's obligations under
the Agreement.
25. Section 2.11 is hereby amended by deleting the third sentence and
replacing the word "Owner" with "Seller" in the last sentence.
26. Section 2.12 is hereby deleted.
27. Section 4.16 is hereby added:
Compliance With Representations and Warranties. Within 60 days of
the earlier of either discovery by or notice to the Company of any
breach of a representation or warranty set forth in this Article IV
which materially and adversely affects the ability of the Company to
perform its duties and obligations under this Agreement or otherwise
materially and adversely affects the value of the Mortgage Loans,
the Mortgaged Property or the priority of the security interest on
such Mortgaged Property, the Company shall use its best efforts
promptly to cure such breach in all material respects and, if such
breach cannot be cured, the Company shall, at the Trustee's option,
assign the Company's rights and obligations under this Agreement (or
respecting the affected Mortgage Loans) to a successor Company
selected by the Depositor with the prior consent and approval of the
Trustee. Such assignment shall be made in accordance with Section
13.01.
28. Section 5.02 is hereby deleted.
29. Section 6.01 is hereby deleted.
30. Section 6.02 is hereby amended to read as follows:
(1) On each Portfolio Remittance Date prior to 1:00 p.m. New
York City time, the Company shall remit to the Trustee (a) all
amounts credited to the Custodial Funds Account as of the close of
business on the last day of the related Due Period (including (1)
the amount of any Principal Prepayment, together with interest
thereon at the related Net Mortgage Rate to the end of the month in
which prepayment of the related Mortgage Loan occurs, provided that
such interest may not be greater that the servicing compensation
payable to the Company in the applicable month, and (2) all proceeds
of any REO Disposition net of amounts payable to the Company), net
of charges against or withdrawals from the Custodial Funds Account
in accordance with Article VII, which charges against or withdrawals
from the Custodial Funds Account the Company shall make solely on
such Portfolio Remittance Date, plus (b) all Monthly Advances, if
any, which the Company is obligated to remit; provided that the
Company shall not be required to remit, until the next following
Portfolio Remittance Date, any amounts attributable to Monthly
Payments collected but due on a Due Date or Dates subsequent to the
related Due Period.
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(2) All remittances required to be made to the Trustee shall
be made to the following wire account or to such other account as
may be specified by the Trustee from time to time:
Xxxxx Fargo Bank, National Association
San Francisco, California
ABA#: 121 000 248
Account Name: FAS Clearing
Account No.: 397 077 1416
For further credit to: 18092700, MLCC 2003-A
31. Section 6.03(a) is hereby amended by adding the following new sentence
to such section:
In lieu of making all or a portion of such Monthly Advance
from its own funds, the Company may cause to be made an appropriate
entry in its records relating to the Custodial Funds Account that
any amount held in the Custodial Funds Account on account of Monthly
Payments or portions thereof received in respect of the Mortgage
Loans due after the related Due Date has been used by the Company in
discharge of its obligation to make any such Monthly Advance and
transfer such funds from the Custodial Funds Account to the Trustee.
Any such Monthly Payments so used to make Monthly Advances shall be
replaced by the Company by deposit in the Custodial Funds Account on
or before any future Portfolio Remittance Date if funds in the
Custodial Funds Account on such Portfolio Remittance Date shall be
less than payments to the Trust Fund required to be made on such
Portfolio Remittance Date.
32. Section 6.04 is hereby amended by replacing the word "Owner" with
"Trustee" except in the proviso of the last sentence and by replacing the
first paragraph of such section with the following:
Not later than the 15th calendar day of each month (or if such
calendar day is not a Business Day, the immediately succeeding
Business Day), the Company shall furnish to the Trustee (i) a
monthly remittance advice in the format set forth in Exhibit D-1
hereto and a monthly defaulted loan report in the format set forth
in Exhibit D-2 hereto relating to the period ending on the first day
of the current calendar month and (ii) all such information required
pursuant to clause (i) above on a magnetic tape or other similar
media reasonably acceptable to the Trustee.
33. Section 7.01 is amended by revising the Servicing Fee with respect to each
Mortgage to mean 0.25% per annum.
34. Sections 7.02, 7.03 and 9.01 are hereby deleted.
35. The parties hereto acknowledge that the remedies set forth in Section
10.01 may be exercised by either the Depositor or the Trustee on behalf of
the Trust Fund.
36. Section 10.01 is hereby modified to delete paragraph (ix) and the
second paragraph of such section.
37. Section 10.02 is hereby deleted.
38. A new Section 11.03 (Officer's Certificate) is hereby added to read as
follows:
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Officer's Certificate. By February 28th of each year, or at
any other time upon thirty (30) days written request, an officer of
the Company shall execute and deliver an Officer's Certificate
substantially in the form of Exhibit F attached hereto, signed by
the senior officer in charge of servicing of the Company or any
officer to whom that officer reports, to the Trustee and Depositor
for the benefit of such parties and their respective officers,
directors and affiliates.
39. Section 12.01 is hereby deleted.
40. Section 12.02 is amended by replacing all references to "Owner" to
"Trustee, Trust Fund and Depositor."
41. Section 13.01 is hereby amended in its entirety to read as follows:
Simultaneously with the termination of the Company's
responsibilities and duties under this Agreement (a) the Trustee
shall, in accordance with the provisions of the Trust Agreement (i)
succeed to and assume all of the Company's responsibilities, rights,
duties and obligations under this Agreement, or (ii) appoint a
successor meeting the eligibility requirements of the Trust
Agreement and which shall succeed to all rights and assume all of
the responsibilities, duties and liabilities of the Company under
this Agreement with the termination of the Company's
responsibilities, duties and liabilities under this Agreement. If
the Trustee shall succeed to and assume the Company's
responsibilities, rights, duties and obligations under this
Agreement, such succession shall not be effective prior to 90 days
after the Trustee's knowledge that the Company shall be terminated
hereunder. The Company shall not be removed hereunder prior to the
effectiveness of the assumption of its responsibilities, rights,
duties and obligations by the successor thereto. Any successor to
the Company that is not at that time a Company of other Mortgage
Loans for the Trust Fund shall be subject to the approval of the
Depositor, the Trustee and each Rating Agency (as such term is
defined in the Trust Agreement). Unless the successor servicer is at
that time a servicer of other mortgage loans for the Trust Fund,
each Rating Agency must deliver to the Trustee a letter to the
effect that such transfer of servicing will not result in a
qualification, withdrawal or downgrade of the then-current rating of
any of the Certificates. In connection with such appointment and
assumption, the Trustee or the Depositor, as applicable, may make
such arrangements for the compensation of such successor out of
payments on the Mortgage Loans as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of
that permitted the Company under this Agreement. In the event that
the Company's duties, responsibilities and liabilities under this
Agreement should be terminated pursuant to the aforementioned
sections, the Company 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 the Company pursuant to
the aforementioned sections shall not become effective until a
successor shall be appointed pursuant to this Section 12.01 and
shall in no event relieve the Company of the representations and
warranties made pursuant to Article IV and the remedies available to
the Trustee under Article VIII, it being understood and agreed that
the provisions of Article XII, Section 8.01, 10.02, 15.02, 15.04 and
15.16. shall be applicable to the Company notwithstanding any such
resignation or termination of the Company, or the termination of
this Agreement.
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Within a reasonable period of time, but in no event longer
than 30 days of the appointment of a successor entity, the Company
shall prepare, execute and deliver to the successor entity any and
all documents and other instruments, place in such successor's
possession all Servicing Files, and do or cause to be done all other
acts or things necessary or appropriate to effect the purposes of
such notice of termination. The Company shall cooperate with the
Trustee and the Depositor, as applicable, and such successor in
effecting the termination of the Company's responsibilities and
rights hereunder and the transfer of servicing responsibilities to
the successor Company, including without limitation, the transfer to
such successor for administration by it of all cash amounts which
shall at the time be credited by the Company to the Custodial
Account or any Escrow Account or thereafter received with respect to
the Mortgage Loans.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Trustee, the Company and the
Depositor an instrument (i) accepting such appointment, wherein the
successor shall make the representations and warranties set forth in
Article IV and (ii) an assumption of the due and punctual
performance and observance of each covenant and condition to be
performed and observed by the Company under this Agreement,
whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and
liabilities of the Company, with like effect as if originally named
as a party to this Agreement. Any termination or resignation of the
Company or termination of this Agreement pursuant to Section 12.01
shall not affect any claims that the Depositor or the Trustee may
have against the Company arising out of the Company's actions or
failure to act prior to any such termination or resignation.
The Company shall deliver within ten (10) Business Days to the
successor Company the funds in the Custodial Account and Escrow
Account and all Mortgage Loan Documents and related documents and
statements held by it hereunder and the Company shall account for
all funds and shall execute and deliver such instruments and do such
other things as may reasonably be required to more fully and
definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Company.
Upon a successor's acceptance of appointment as such, the
Company shall notify the Trustee and Depositor of such appointment
in accordance with the notice procedures set forth herein.
42. A new Section 13.02 is hereby added to read as follows:
Intended Third Party Beneficiaries. Notwithstanding any provision
herein to the contrary, the parties to this Agreement agree that it
is appropriate, in furtherance of the intent of such parties as set
forth herein, that the Depositor and the Trustee receive the benefit
of the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such provisions.
The Company shall have the same obligations to the Depositor and the
Trustee as if they were parties to this Agreement, and the Depositor
and the Trustee shall have the same rights and remedies to enforce
the provisions of this Agreement as if they were parties to this
Agreement. The Company shall only take direction from the Depositor
(if direction by the Depositor is required under this Agreement)
unless otherwise directed by this Agreement. Notwithstanding the
foregoing, all rights and obligations of the Depositor and the
Trustee hereunder (other
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than the right to indemnification) shall terminate upon termination
of the Trust Agreement and of the Trust Fund pursuant to the Trust
Agreement.
43. A new Section 13.03 is hereby added to read as follows:
Request for Release. When requesting a release of documents from the
Custodian, the Company shall use the form attached hereto as Exhibit
E.
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EXHIBIT B
Mortgage Loan Schedule
[INTENTIONALLY OMITTED]
B-1
EXHIBIT C
Servicing Agreement
See Exhibit 99.2 and Exhibit 99.3, filed herewith.
C-1
EXHIBIT D-1
STANDARD LAYOUT FOR MONTHLY REMITTANCE ADVICE
DETAIL RECORD
The detail record for external output files #0312 - #1252 (noninclusive) is as
follows:
POSITION FIELD NAME PICTURE DESCRIPTION
0001-0001 REC ID X(01) This field equals D.
0002-0013 LOAN NUMBER X(12) This field equals the LOAN-NO
from report S-50Y. The number is
right-justified and left
blank-filled.
0014-0014 LOAN NUMBER X(01) This field equals the check
CHK DGT digit associated with the ALLTEL
loan number. Spaces are moved to
this field if no check digit
exists for the loan.
0015-0019 INTEREST 99V9(03) This field equals the interest
RATE rate (note rate) that applies to
the scheduled payment that is
included on this tape.
0020-0024 PENDING RATE 99V9(03) This field equals the interest
that applies to the loan the
next time the interest rate is
changed for the loan. This is
equal to INTEREST RATE (above)
if the new interest rate has not
been determined.
0025-0036 SCHED P&I PMT 9(10)V99 This field equals the scheduled
principal and interest payment
on report S-50Y for the cutoff
being processed.
0037-0037 FILLER X(01) This field equals spaces.
0038-0048 SCHEDULED S9(09) This field equals the SCHED PRIN
PRINCIPAL V99 on report S-50Y.
D-1-1
0049-0060 GROSS 9(10)V99 This field equals the (Beginning
INTEREST Scheduled Principal Balance *
Note Rate) / 12. The fields used
to make this calculation are
sent from report S-50Y for
processing the cutoff.
0061-0072 CURTAILMENT S9(10)V99 This field equals CURTAILMENT
COLL from report S-50Y for processing
the cutoff.
0073-0084 CURTAILMENT S9(10)V99 This field equals the field
ADJ labeled ADJ following the
CURTAILMENT field on report
S-50Y for processing the cutoff.
0085-0096 PIF 9(10)V99 This field equals the beginning
PRINCIPAL scheduled principal balance on
report S-50Y for the loan if the
loan has been paid in full.
0097-0108 PIF INTEREST 9(10)V99 This field is the difference
DIFF between the scheduled net
interest and the interest
collections for the loan on
report S-50Y for processing the
cutoff.
0109-0113 ARM INDEX 99V9(03) This field is equal to the ARM
INDEX that applies to the
scheduled net interest payment.
0114-0118 PEND INDEX 99V9(03) This field is equal to the ARM
INDEX for the interest rate
associated with the interest
rate that is effective the next
time the interest rate changes.
This field is equal to the ARM
INDEX above if the interest rate
above has not been determined.
0119-0130 ENDING SCHED 9(10)V99 This field is equal to the
BAL ENDING SCH BALANCE on report
S-50Y for processing the cutoff.
0131-0140 INVESTOR X(10) This field is equal to INV LOAN
LOAN NUM NO from report S-50Y for
processing the cutoff.
0141-0145 SERVICE FEE S99 This field is equal to the S-FEE
RATE V9(03) from report S-50Y for processing
the cutoff.
0146-0151 DUE DATE 9(06) This field is equal to the DUE
DT from report S-50Y for
processing the cutoff. The date
is in the format YYMMDD.
0152-0156 YIELD RATE S99 This field is equal to the YIELD
V9(03) from report S-50Y for processing
the cutoff.
0157-0169 BEGINNING S9(11) This field is equal to the BEGIN
BALANCE V99 PRIN BAL from report S-50Y for
processing the cutoff.
0170-0182 ENDING S9(11) This field is equal to the END
BALANCE V99 PRIN BAL from report S-50Y for
processing the cutoff.
0183-0195 BEGINNING S9(11) This field is equal to the BEG
SCHED BAL V99 SCHED PRIN BAL from report S-50Y
for processing the cutoff.
0196-0207 PRINCIPAL S9(10) This field is equal to the PRIN
COLLECTED V99 COLL from report S-50Y for
processing the cutoff.
0208-0219 SCHEDULED S9(10) This field is equal to the SCH
NET INT V99 NET INT from report S-50Y for
processing the cutoff.
0220-0231 SCHEDULED S9(10) This field is equal to the
BUYDOWN V99 BUYDOWN from report S-50Y for
processing the cutoff.
0232-0243 SERVICE FEE S9(10) This field is equal to the
COLL V99 SER-FEE COLL from report S-50Y
for processing the cutoff.
0244-0255 REMITTANCE S9(10) This field equals the REMITTANCE
AMOUNT V99 from report S-50Y for processing
the cutoff.
HEADER RECORD
The header record for external output files #0312 - #1252 (noninclusive) is as
follows:
POSITION FIELD NAME PICTURE DESCRIPTION
0001-0001 REC-ID X(01) This field equals H.
0002-0009 FILLER X(08) This field equals spaces.
0010-0015 TAPE-DATE 9(6) This field equals the date the
tape was created. Type the field
in the format YYMMDD.
0016-0255 FILLER X(240) This field equals spaces.
TRAILER RECORD
The trailer record for external output files #0312 - #1252 (noninclusive) is as
follows:
POSITION FIELD NAME PICTURE DESCRIPTION
0001-0001 REC ID X(01) This field equals T.
0002-0011 LOAN COUNT 9(10) This field equals the total
number of loans reported on the
tape.
0012-0255 FILLER X(244) This field equals spaces.
EXHIBIT D-2
STANDARD LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
OUR INVESTOR INVESTOR MORTGAGOR DUE PRINCIPAL PRIN-INT DELINQUENTS
LOAN NO. BK. CAT. TP. LOAN NO. NAME DATE PAYT NO. BALANCE CONSTANT PRINCIPAL INTEREST LOAN DESC
D-2-1
EXHIBIT E
REQUEST FOR RELEASE
To: Xxxxx Fargo Bank Minnesota,
National Association
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
(Attention: Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2003-A)
Re: Trust Agreement, dated as of February 1, 2003 by and
between Xxxxxxx Xxxxx Mortgage Investors, Inc. and Xxxxx
Fargo Bank Minnesota, National Association, as Trustee
In connection with the administration of the pool of Mortgage Loans held
by you as Trustee for the benefit of Certificateholders, we request the release
of the (Trustee's Mortgage File/[specify documents]) for the Mortgage Loan
described below, for the reason indicated.
File/document to be sent to:
[Company]
[Address]
[Attn:]
[Telephone Number ____]
Mortgagor's Name, Address & Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
______ 1. Mortgage Loan Paid in Full
([Seller/Depositor] [Servicer], hereby certifies that all amounts
received in connection therewith have been credited to the Custodial
Account or the Distribution Account, as applicable.)
______ 2. Mortgage Loan in Foreclosure
______ 3. Mortgage Loan Repurchased or Substituted For ([Seller/Depositor]
[Servicer], hereby certifies that any applicable repurchase price or
substitution shortfall amount has been credited to the Custodial
Account or the Distribution Account, as applicable.)
______ 4. Mortgage Loan Liquidated
([Seller/Depositor] [Servicer], hereby certifies that all proceeds
of foreclosure, insurance or other liquidation have been finally
received and credited to the Custodial Account or the Distribution
Account, as applicable.)
______ 5. Other (explain) __________________________________
E-1
If box 1, 2 or 3 above is checked, and if all or part of the Trustee's
Mortgage File was previously released to us, please release to us our previous
receipt on file with you, as well as any additional documents in your possession
relating to the above specified Mortgage Loan.
If box 4 or 5 above is checked, upon our return of all of the above
documents to you as Trustee, please acknowledge your receipt by signing in the
space indicated below, and returning this form.
[SELLER/DEPOSITOR]
[SERVICER]
By:_________________________________
Date:_______________________________
Documents returned to Trustee:
___________________________,
as Trustee
By:_________________________________
Date:_______________________________
E-2
EXHIBIT F
SEC CERTIFICATION
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: Xxxxxxx Xxxxx Mortgage Investors Trust
Series MLCC 2003-A
Reference is made to the Reconstituted Servicing Agreement, dated as of February
1, 2003 (the "Agreement"), by and between Xxxxxxx Xxxxx Credit Corporation, as
Seller and Cendant Mortgage Corporation, as servicer (the "Company"). I,
[identify the certifying individual], a [title] of the Company hereby certify to
Xxxxx Fargo Bank Minnesota, N.A. (the "Trustee") and Xxxxxxx Xxxxx Mortgage
Investors, Inc. (the "Depositor"), and their respective officers, directors and
affiliates, that:
1. I have reviewed the information required to be delivered to the Trustee
pursuant to the Agreement (the "Servicing Information").
2. Based on my knowledge, the information in the Annual Statement of Compliance,
and all servicing reports, officer's certificates and other information
relating to the servicing of the Mortgage Loans submitted to the Trustee by
the Company 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 last day of the period covered by the
Annual Statement of Compliance;
3. Based on my knowledge, the Servicing Information required to be
provided to the Trustee by the Company under the Agreement has been
provided to the Trustee;
4. I am responsible for reviewing the activities performed by the Company under
the Agreement and based upon the review required under the Agreement, and
except as disclosed in the Annual Statement of Compliance, the Annual
Independent Certified 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 Trustee by the Company, the
Company has, as of the last day of the period covered by the Annual Statement
of Compliance fulfilled its obligations under the Agreement; and
F-1
5. I have disclosed to the Trustee and the Depositor 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 as set forth in the
Agreement.
Name: ____________________________
Title:____________________________
Date: ____________________________
F-2
