Exhibit 99.3
EXECUTION
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered
into as of the 1st day of May, 2001, by and between XXXXXX CAPITAL, A DIVISION
OF XXXXXX BROTHERS HOLDINGS INC., a Delaware corporation ("Xxxxxx Capital"),
and COUNTRYWIDE HOME LOANS, INC., a New York corporation ("the Servicer"),
recites and provides as follows:
RECITALS
WHEREAS, Xxxxxx Capital has conveyed certain Mortgage Loans originated
by Fieldstone Mortgage Company identified on Schedule I hereto (the "Schedule I
Mortgage Loans") and certain mortgages originated by Fremont Investment and
Loan identified on Schedule II hereto (the "Schedule II Mortgage Loans") (the
Schedule I Mortgage Loans and the Schedule II Mortgage Loans collectively
referred to as the "Serviced Mortgage Loans") to Structured Asset Securities
Corporation, a Delaware special purpose corporation ("SASCO"), which in turn
has conveyed the Serviced Mortgage Loans to Bank One, National Association, a
national banking association, as trustee (the "Trustee"), under a trust
agreement dated as of May 1, 2001 (the "Trust Agreement"), among the Trustee,
Xxxxx Fargo Bank Minnesota, National Association, as master servicer ("WFBM,"
and, together with any successor Master Servicer appointed pursuant to the
provisions of the Trust Agreement, the "Master Servicer"), SASCO, as depositor
and The Murrayhill Company, as loss mitigation advisor (the "Loss Mitigation
Advisor") under a Loss Mitigation Advisory Agreement (the "Loss Mitigation
Advisory Agreement"), dated as of May 1, 2001 between the Servicer and the Loss
Mitigation Advisor.
WHEREAS, multiple classes of Certificates are being issued pursuant to
the Trust Agreement, including the Class X Certificate;
WHEREAS, the Schedule I Mortgage Loans are currently being serviced by
the Servicer pursuant to a Servicing Agreement between Xxxxxx Brothers Bank,
FSB (the "Bank") and the Servicer, dated as of January 29, 2001 (for Fixed and
Adjustable Rate Mortgage Loans-Group FF-2001-1) (the "Bank Servicing
Agreement").
WHEREAS, pursuant to an Assignment, Assumption and Recognition
Agreement, dated as of April 30, 2001, the Bank has assigned all of its right,
title and interest in and to the related Schedule I Mortgage Loans to Xxxxxx
Capital and delegated all of its duties and obligations as owner under the Bank
Servicing Agreement to Xxxxxx Capital, and Xxxxxx Capital has accepted such
assignment and delegation.
WHEREAS, the Schedule II Mortgage Loans are currently being serviced
by the Servicer pursuant to a Servicing Agreement between Xxxxxx Capital and
the Servicer, dated as of January 29, 2001 (for Fixed and Adjustable Rate
Mortgage Loans - Group FF-2001-1) (the "LC Servicing Agreement").
WHEREAS, Xxxxxx Capital desires that the Servicer continue to service
the Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to
the rights of the Master Servicer and the Class X Certificateholder to
terminate the rights and obligations of the Servicer hereunder as set forth
herein and to the other conditions set forth herein.
WHEREAS, Xxxxxx Capital and the Servicer desire to consolidate the
servicing of the Scheduled I Mortgage Loans currently serviced under the
aforementioned Bank Servicing Agreement with the servicing of the Schedule II
Mortgage Loans currently serviced under the provisions of the LC Servicing
Agreement.
WHEREAS, Xxxxxx Capital and the Servicer desire that the provisions of
the LC Servicing Agreement shall apply to the Serviced Mortgage Loans, but only
to the extent provided herein and that this Agreement shall constitute a
Reconstitution Agreement which shall govern the Serviced Mortgage Loans for so
long as such Serviced Mortgage Loans remain subject to the provisions of the
Trust Agreement.
WHEREAS, the Master Servicer and any successor master servicer shall
be obligated, among other things, to supervise the servicing of the Serviced
Mortgage Loans on behalf of the Trustee, and shall have the right, under
certain circumstances, to terminate the rights and obligations of the Servicer
under this Agreement.
WHEREAS, Xxxxxx Capital and the Servicer intend that each of the
Master Servicer and the Trustee is an intended third party beneficiary 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, Xxxxxx Capital and the Servicer
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 LC Servicing
Agreement between Xxxxxx Capital and the Servicer incorporated by reference
herein (regardless of whether such terms are defined in the LC Servicing
Agreement), shall have the meanings ascribed to such terms in the Trust
Agreement.
2. Merger. For administrative convenience, the Servicer and Xxxxxx
Capital hereby agree that (i) the servicing of those Schedule I Mortgage Loans
currently serviced under the Bank Servicing Agreement and (ii) the servicing of
those Schedule II Mortgage Loans currently serviced under the LC Servicing
Agreement shall all be serviced under the LC Servicing Agreement as
reconstituted by this Agreement.
3. Servicing. The Servicer agrees, with respect to the Serviced
Mortgage Loans, to perform and observe the duties, responsibilities and
obligations that are to be performed and observed under the provisions of the
LC Servicing Agreement, except as otherwise provided herein and on Exhibit A
hereto, and that the provisions of the LC 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.
4. Master Servicing; Termination of Servicer. The Servicer, including
any successor servicer hereunder, shall be subject to the supervision of the
Master Servicer, which Master Servicer shall be obligated to ensure that the
Servicer services the Serviced Mortgage Loans in accordance with the provisions
of this Agreement. The Master Servicer, acting on behalf of the Trustee and the
trust fund (the "Trust Fund") created pursuant to the Trust Agreement, shall
have the same rights as Xxxxxx Capital under the LC Servicing Agreement to
enforce the obligations of the Servicer under the LC Servicing Agreement and
the term "Owner" as used in the LC Servicing Agreement in connection with any
rights of the Owner shall refer to the Master Servicer, except as otherwise
specified in Exhibit A hereto. The Master Servicer shall be entitled to
terminate the rights and obligations of the Servicer under this Agreement upon
the failure of the Servicer to perform any of its obligations under this
Agreement, as provided in Article IX of the LC Servicing Agreement.
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer assume any of the obligations of Xxxxxx Capital under the LC Servicing
Agreement; and in connection with the performance of the Master Servicer's
duties hereunder the parties and other signatories hereto agree that the Master
Servicer shall be entitled to all of the rights, protections and limitations of
liability afforded to the Master Servicer under the Trust Agreement.
5. No Representations. Neither the Servicer nor the Master Servicer
shall be obligated or required to make any representations and warranties
regarding the characteristics of the Serviced Mortgage Loans in connection with
the transactions contemplated by the Trust Agreement and issuance of the
Certificates 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 Master Servicer under this Agreement shall be delivered to the Master
Servicer at the following address:
Xxxxx Fargo Bank Minnesota,
National Association
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Master Servicing Department, ARC 2001-BC3
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made to the following wire account:
Xxxxx Fargo Bank Minnesota,
National Association
Minneapolis, Minnesota
ABA# 000-000-000
Account Name: Corporate Trust Clearing
Account No. 0000000000
For further credit to: Collection Account No. 00000000 (ARC 2001-BC3)
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
Bank One, National Association
1 Bank Xxx Xxxxx
Xxxx Xxxxx xX0-0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Trust Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to Xxxxxx Capital hereunder shall
be delivered to it at the following address:
Xxxxxx Capital, a Division of Xxxxxx Brothers Holdings Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Mortgage Backed Finance Department
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All notices required to be delivered to the Servicer hereunder shall
be delivered to the address of its office for notices as set forth in the LC
Servicing Agreement.
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.
9. Reconstitution. Xxxxxx Capital and the Servicer agree that this
Agreement is a "Reconstitution Agreement" and that the date hereof is the
"Reconstitution Date", each as defined in the LC Servicing Agreement.
Executed as of the day and year first above written.
XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxxx, Xx.
Title: Vice President
Acknowledged by:
XXXXX FARGO BANK MINNESOTA,
NATIONAL BANK
as Master Servicer
By: /s/ Xxx Xxxxx
-------------------------------------
Name: Xxx Xxxxx
Title: Assistant Vice President
BANK ONE, NATIONAL ASSOCIATION
as Trustee
By: /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: First Vice President
EXHIBIT A
Modifications to the LC Servicing Agreement
1. Unless otherwise specified herein, any provisions of the LC Servicing
Agreement, including definitions, relating to (i) representations and
warranties of the Owner, (ii) Agency Transfers, Pass-Through
Transfers, Whole Loan Transfers and reconstitutions, (iii) Closing
Dates, and (iv) the First Remittance Date shall be disregarded. The
exhibits to the LC Servicing Agreement and all references to such
exhibits shall also be disregarded for purposes of this Agreement.
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. The definition of "Business Day" in Article I is hereby amended to
read as follows:
Business Day: Any day other than (a) a Saturday or Sunday or
(b) a day on which banking and savings and loan institutions
in the States of California, New York, Maryland, Minnesota or
Illinois are authorized or obligated by law or executive
order to be closed.
4. The definition of "Custodial Agreement" in Article I is hereby amended
in its entirety to read as follows:
Custodial Agreement: The custodial agreement relating to the
custody of the Serviced Mortgage Loans between U.S. Bank
Trust National Association, as Custodian, and the Trustee.
5. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
Custodian: With respect to the Serviced Mortgage Loans, U.S.
Bank Trust National Association and any successor in interest
or any successor custodian appointed pursuant to the Custodial
Agreement.
6. The definition of "Determination Date" in Article I is hereby restated
in its entirety to read "The last day of the Due Period immediately
preceding the Remittance Date."
7. The definition of "Fitch" in Article I is hereby amended to read
"Fitch, Inc. or any successor thereto."
8. The definition of "Insurance Proceeds" in Article I is hereby amended
by inserting the following parenthetical after the word "policies" in
such definition:
(including any proceeds of the MGIC PMI Insurance Policy)
9. The following new definitions of "MGIC" and MGIC PMI Insurance Policy"
are hereby added to Article I immediately to follow the definition of
"Liquidation Proceeds" and to read as follows:
MGIC: Mortgage Guaranty Insurance Corporation and its
successors and assigns.
MGIC PMI Insurance Policy: The primary mortgage insurance
policy (Mortgage Guaranty Master Policy No.0502041171)
acquired by the Seller for the Trust Fund from MGIC for those
Mortgage Loans included in the Trust Fund with loan-to-value
ratios determined at the date of origination to be greater
than 60% (which policy provides separate certificate numbers
for each Mortgage Loan covered thereby) and which Mortgage
Loans shall be specifically identified to the Servicer in a
separate schedule provided by the Seller and annexed hereto
as Schedule II.
10. The definition of "Monthly Advance" in Article I is hereby amended by
deleting the reference to "(i)" in the third line thereof and by
deleting the words "and (ii) was not the subject of a previous Monthly
Advance" in the fifth line thereof.
11. The definition of "Opinion of Counsel" is hereby amended by inserting
the words "reasonably acceptable to the Trustee, the Master Servicer
and Xxxxxx Capital" after the word "counsel" in the first and fourth
lines thereof and by deleting the words "reasonably acceptable to the
Owner" in the second line thereof.
12. The definition of "PMI Policy" in Article I is hereby amended by
deleting the period at the end of such definition and inserting the
following words at the end of such definition:
and which includes the MGIC PMI Insurance Policy.
13. The definition of "Qualified Depository" in Article I is hereby
amended in its entirety to read as follows:
"Qualified Depository: Either (i) a depository the accounts
of which are insured by the FDIC through the BIF or the SAIF
and the short-term unsecured debt obligations of which are
rated "A-1" or better by S&P or "Prime-1" or better by
Xxxxx'x (or a comparable rating if another rating agency is
specified by the Master Servicer by written notice to the
Servicer) or (ii) the corporate trust department of any bank
the debt obligations of which are rated at least "A-" or its
equivalent by either of S&P or Xxxxx'x."
14. The definition of "Remittance Date" in Article I is hereby replaced by
the following:
The 18th day (or if such 18th day is not a Business Day, the
first Business Day immediately following) of any month.
15. The definition of "REO Property" in Article I is hereby amended by
replacing the word "Owner" with "the Trustee on behalf of the Trust
Fund".
16. The definition of "Repurchase Price" in Article I is hereby amended by
replacing the word "Owner" in the fourth line thereof with "Collection
Account".
17. The definition of "Servicing Fee" in Article I is hereby amended by
deleting the first four lines thereof and everything in the fifth line
thereof up to but excluding the words "the monthly"; by removing the
words "the Owner shall pay to the Servicer" in the sixth line thereof
and by deleting the words "obligation of the Owner to pay the
Servicing Fee is limited to, and" in the third sentence thereof.
18. The definition of "Servicing File" in Article I is hereby replaced by
the following:
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer.
19. Section 2.01 (Contract for Servicing; Possession of the Mortgage
Files) is hereby amended by replacing each reference to "Owner" with
"Trustee on behalf of the Trust Fund."
20. Section 2.02 (Books and Records) and Section 2.03 (Commencement of
Servicing of Responsibilities) shall be disregarded for purposes of
this Agreement as they reflect obligations previously performed by the
Servicer or Xxxxxx Capital.
21. Section 2.04 (Custodial Agreement) shall be superseded by the
provisions of the Custodial Agreement.
Section 3.01 (Servicer to Service) is hereby amended
by (a) changing the word "Owner" to "Trust Fund" in the fifth
line of the second paragraph thereof; (b) changing the word
"Owner" to "Master Servicer" in the eighth line of the second
paragraph thereof; (c) deleting the words "with respect to a
Reconstitution Agreement" in the eleventh line of the second
paragraph thereof; (d) changing the word "Owner" to "Trustee
on behalf of the Trust Fund" in the nineteenth line of the
second paragraph thereof; (e) changing the word "Owner" to
"Master Servicer or Trustee" in the twenty-second and
twenty-fourth line of the second paragraph thereof; (f)
changing the word "Owner's" to "Trustee's" in the third
paragraph thereof; and (g) by changing the word "Owner" to
"Master Servicer" in the fourth paragraph thereof.
and (i) by adding the following paragraph as the sixth paragraph to
such Section:
The Servicer or any designee of the Servicer shall
not waive any prepayment charge or fee with respect to any
Mortgage Loan which contains a prepayment charge and which
prepays during the term of the penalty. If the Servicer or
its designee fails to collect the prepayment charge upon any
prepayment of any Mortgage Loan which contains a prepayment
charge, the Servicer shall deposit into the Custodial Account
an amount equal to the prepayment charge which was not
collected. Notwithstanding the above, the Servicer or its
designee may waive a prepayment charge without remitting the
amount of the foregone prepayment charge to the Custodial
Account if the prepayment is not a result of a refinancing by
the Servicer or any of its affiliates and (i) the Mortgage
Loan is in default or foreseeable default and the Servicer
reasonably believes that such waiver would maximize recovery
of total proceeds taking into account the value of such
prepayment charge and the related Mortgage Loan or (ii) the
collection of the prepayment charge would be in violation of
applicable laws.
22. Section 3.02 (Liquidation of Mortgage Loans) is hereby amended by: (a)
changing the word "Owner" to "Trust Fund" in the sixth and fourteenth
lines of the first paragraph and the fourth line of the second
paragraph; (b) changing the word "Owner" to "Master Servicer or
Trustee" in the fourth line of the third paragraph; (c) restating the
second and third sentences of the third paragraph in their entirety to
read as follows:
"Inspections conducted upon the request of the
Master Servicer or Trustee shall be an expense of the Trust
Fund. Upon completion of the inspection, the Servicer shall
promptly provide the Master Servicer and the Trustee with a
written report of the environmental inspection;" and
(d) by replacing the word "Owner" each time it appears in the fourth
paragraph thereof with "Master Servicer".
23. Section 3.03 (Collection of Mortgage Loan Payments) is hereby amended
by deleting the words "Continuously from the Closing Date" in the
first sentence thereof.
24. Section 3.04 (Establishment of and Deposit to Custodial Account) is
hereby amended as follows:
(a) by restating the first sentence to read "The Servicer shall
segregate and hold all funds collected and received pursuant
to the Mortgage Loans separate and apart from any of its own
funds and general assets and shall establish one or more
Custodial Accounts, in the form of time deposits or demand
accounts, titled: "[Servicer] in trust for Xxxxx Fargo Bank
Minnesota, National Association, as Master Servicer for the
ARC 2001-BC3 Trust"; and
(b) by replacing the word "Owner" with "Trustee" each time it
appears in the first paragraph thereof.
25. Section 3.05 (Permitted Withdrawals From Custodial Account) is hereby
amended by restating clause (i) thereof in its entirety as follows:
(i) to make payments to the Master Servicer in the amounts
and in the manner provided for in Section 4.01;
26. Section 3.06 (Establishment of and Deposits to Escrow Account) shall
be amended by deleting the words "Xxxxxx Capital, a Division of Xxxxxx
Brothers Holdings Inc., owner of Fixed and Adjustable Rate Mortgage
Loans, and various Mortgagors (provided, in the event that this
Agreement is assigned to a third party, the Escrow Account(s) shall be
reestablished in Trust for such Assignee)" in the fourth, fifth, sixth
and seventh lines of the first sentence of the first paragraph
thereof, and replacing it with the following:
Countrywide Home Loans, Inc. in trust for Xxxxx Fargo Bank
Minnesota, National Association, as Master Servicer for the
ARC 2001-BC3 Trust and various Mortgagors"
27. Section 3.08 (Notification of Adjustments) is hereby amended by
replacing the word "Owner" or "Owner's" in the seventh, eighth and
tenth lines thereof with the words "Master Servicer" and "Master
Servicer's," respectively, and in the twelfth line thereof with "Trust
Fund".
28. Section 3.09 (Completion and Recordation of Assignment of Mortgage) is
hereby amended by replacing the word "Owner" in each place it appears
with "Trustee"; and by removing the words "at the direction of the
Owner" in the fifth line thereof.
29. Section 3.10 (Protection of Accounts) is hereby amended by replacing
the reference to "Owner" in each place it appears in the first
paragraph thereof with "Trustee", in the second paragraph thereof with
"Trust Fund", and in the tenth line of the third paragraph of such
section with "Trustee on behalf of the Trust Fund".
30. Section 3.12 (Maintenance of Hazard Insurance) is hereby amended by:
(a) replacing the word "Owner" in the fifth paragraph thereof with
"Trustee or Master Servicer" and (b) adding the words "on behalf of
the Trust Fund" after the words "loss payee" in the sixth paragraph
thereof.
31. Section 3.13 (Maintenance of Mortgage Blanket Insurance) is hereby
amended by replacing the words "any Owner" and "such Owner" in the
last sentence thereof with "Trustee and Master Servicer" in each case.
32. Section 3.14 (Maintenance of Fidelity Bond and Errors and Omissions
Insurance) is hereby amended by replacing the words "any Owner" and
"such Owner" in the last sentence thereof with "Trustee and Master
Servicer" in each case.
33. Section 3.16 (Restoration of Mortgaged Property) is hereby amended by
replacing each reference to "Owner" which appears therein with "Master
Servicer".
34. Section 3.17 (Maintenance of PMI Policy; Claims) is hereby amended by
replacing each reference to "Owner" which appears therein with
"Trustee and Master Servicer".
35. Section 3.18 (Title, Management and Disposition of REO Property) is
hereby amended by: (a) replacing the word "Owner" in the first
paragraph thereof in each place it appears with "Trustee"; (b)
replacing the word "Owner" in the second paragraph thereof with
"Trustee and the Trust Fund"; (c) replacing the word "Owner" in the
third paragraph thereof and in the first line of the fifth paragraph
thereof with "Master Servicer" and in the third line of such fifth
paragraph with "Trustee and the Trust Fund"; and by (d) restating the
second and third sentences of the fifth paragraph as follows:
Prior to acceptance by the Servicer of an offer to
sell any REO Property of which the Trust Fund is the owner
for a sale price that is less than 90% of the unpaid
principal balance of the related Mortgage Loan, the Servicer
shall notify the Master Servicer of such offering in writing
which notification shall set forth all material terms of said
offer (each a "Notice of Sale"). The Master Servicer shall be
deemed to have approved the sale of any REO Property unless
it notifies the Servicer in writing within five (5) Business
Days after its receipt of the related Notice of Sale, that it
disapproves of the related sale, in which case the Servicer
shall not proceed with such sale; provided, however, the
Master Servicer shall not take any action which would prevent
the Servicer from disposing of any REO Property within the
time period specified under the REMIC Provision of the Code;
and
(e) by changing the word "Owner" in the sixth line of the sixth
paragraph to "Master Servicer"; and (f) by changing the word "Owner"
in the seventh paragraph to "Trustee".
36. Section 3.19 (Real Estate Owned Reports) is hereby amended by
replacing the word "Owner" in each place it appears with "Trustee and
the Master Servicer".
37. Section 3.20 (Liquidation Reports) is hereby amended by changing the
first reference to "Owner" in the second line thereof to "Trust Fund"
and the second reference to "Owner" in the second line thereof to
"Master Servicer" and by adding the following sentences:
The Servicer will send the liquidation report to the Master
Servicer prior to the next Remittance Date following the
foreclosure sale or acquisition.
38. Section 4.01 (Remittances) is hereby amended by: (a) deleting the
first paragraph thereof in its entirety and replacing it with the
following paragraph:
On each Remittance Date the Servicer shall remit on
a scheduled/scheduled basis by wire transfer of immediately
available funds to the Master Servicer (a) all amounts
deposited in the Custodial Account as of the close of
business on the last day of the Due Period (net of any
charges against or withdrawals from the Custodial Account
pursuant to Section 3.05, plus (b) all Monthly Advances, if
any, which the Servicer is obligated to make pursuant to
Section 4.03 minus (c) any amounts attributable to Principal
Prepayments, Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds or REO Disposition proceeds received
after the applicable Due Period, which amounts shall be
remitted on the following Remittance Date, together with any
additional interest required to be deposited in the Custodial
Account in connection with a Prepayment Interest Shortfall
Amount pursuant to Section 3.04 (viii) and minus (d) any
amounts attributable to Monthly Payments collected but due on
a Due Date or Dates subsequent to the first day of the month
in which such Remittance Date occurs, which amounts shall be
remitted on the Remittance Date or Dates next succeeding the
Due Period for such amounts; and
(b) replacing each reference to "Owner" in the
second paragraph thereof with "Master Servicer".
39. Section 4.02 (Statements to Owner) is hereby amended as follows:
(a) by restating the first paragraph thereof to read as follows:
Not later than the tenth calendar day of each month (or if
such 10th calendar day is not a Business Day, the
immediately preceding Business Day), the Servicer shall
furnish the Master Servicer a monthly statement (a "Monthly
Remittance Advice") containing such information in a form
mutually acceptable form to the Servicer and the Master
Servicer.
(b) by replacing the word "Owner" in paragraph (b) of such
section with "Master Servicer";
(c) by deleting the text of paragraph (c) in its entirety and
replacing it with the following:
(d) In addition, such Monthly Remittance Advice shall also
include, in accordance with the Loss Mitigation Advisory
Agreement, the following items with respect to the MGIC PMI
Insurance Policy:
(a) the MI Claim Amount paid;
(b) the NOD Date;
(c) the Actual Claim Filed Date; and
(d) the MI Certificate Number.
40. Section 4.03 (Monthly Advances by Servicer) is hereby amended by
deleting the third and fourth sentences thereof as inapplicable to
this Reconstitution Agreement.
41. Section 5.01 (Servicing Compensation) is hereby amended by deleting
the words "The obligations of the Owner to pay" from the last sentence
in the first paragraph thereof.
42. Section 5.02 (Transfers of Mortgaged Property) is hereby amended by
(a) replacing the word "Owner" in the sixth and twelfth lines of the
first paragraph thereof with "Trustee and the Trust Fund" and in all
other cases by replacing the word "Owner" or "Owner's" with "Master
Servicer" or "Master Servicer's" (b) replacing the word "Owner" in the
eighth and ninth lines thereof with "owner"; and (c) replacing the
words "by the Owner" in the sixteenth line of the second paragraph
thereof with "by the Servicer."
43. Section 5.03 (Right to Examine Servicer Records) is hereby amended by
replacing the word "Owner" with the words "Trustee and Master
Servicer.
44. Section 5.04 (Servicing Tape) is hereby amended by adding the words
"in the form attached hereto as Exhibit A-1 or other" after the word
"file" in the second line thereof and by deleting the words "in an" in
such second line thereof and by replacing the word "Owner" with
"Master Servicer".
45. Section 5.05 (Satisfaction of Mortgage and Release of Mortgage Files)
is hereby amended by replacing the word "Owner" in the first line of
the first paragraph with "Master Servicer" and in the seventh line
thereof with "Trustee"; and by replacing the word "Owner" in the
second paragraph thereof with the words "Trustee and the Trust Fund".
46. Section 5.06 (Annual Statement as to Compliance) is hereby amended by
changing the reference therein to "July 31, 2001" to "July 31, 2002"
and by changing the reference to "Owner" each time it appears therein
to "Trustee and the Master Servicer".
47. Section 5.07 (Annual Independent Public Accountants' Servicing Report)
is hereby amended by changing the reference therein to "July 31, 2001"
to "July 31, 2002" and by changing the reference to "Owner" each time
it appears therein to "Trustee and the Master Servicer".
48. Section 6.01 (Representations, Warranties and Agreements of the
Servicer) is hereby amended as follows:
(a) by replacing the words "Owner as of the Closing Date" in the
second line thereof with "Trustee on behalf of the Trust Fund
and the Master Servicer as of the date of this Agreement";
and
(b) by deleting the words "the information contained in the
Mortgage Loan Schedule and" in the first sentence and the
words "the Mortgage Loan Schedule nor the" in the second
sentence of clause (h).
49. Section 6.02 (Remedies for Breach of Representations and Warranties of
the Servicer) is hereby amended and restated in its entirety as
follows:
It is understood and agreed that the representations
and warranties set forth in Section 6.01 shall survive the
engagement of the Servicer to perform the servicing
responsibilities hereunder and the delivery of the Servicing
Files to the Servicer and shall inure to the benefit of the
Trustee and the Trust Fund. Upon discovery by either the
Servicer, the Master Servicer or the Trustee of a breach of
any of the foregoing representations and warranties which
materially and adversely affects the ability of the Servicer
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 or the interest
of the Trustee or the Trust Fund, (in the case of any of the
foregoing, a "Breach"), the party discovering such Breach
shall give prompt written notice to the other.
Within 60 days of the earlier of either discovery by
or notice to the Servicer of any Breach of a representation
or warranty set forth in Section 6.01 which materially and
adversely affects the ability of the Servicer 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 Servicer shall use
its Best Efforts promptly to cure such Breach in all material
respects and, if such Breach cannot be cured within such 60
days, the Servicer shall, at the Trustee's option, assign the
Servicer's rights and obligations under this Agreement (or
respecting the affected Mortgage Loans) to a successor
servicer selected by the Trustee with the prior consent and
approval of the Master Servicer. Such assignment shall be
made in accordance with Section 10.01.
In addition, the Servicer shall indemnify the
Trustee, the Trust Fund, the Master Servicer and hold each of
them harmless against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary 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 the Servicer's
representations and warranties contained in this Agreement.
It is understood and agreed that the remedies set forth in
this Section 6.02 constitute the sole remedies of the Master
Servicer, the Trust Fund, and the Trustee respecting a Breach
of the foregoing representations and warranties.
Any cause of action against the Servicer relating to
or arising out of the Breach of any representations and
warranties made in Section 6.01 shall accrue upon (i)
discovery of such Breach by the Servicer or notice thereof by
the Trustee or Master Servicer to the Servicer, (ii) failure
by the Servicer to cure such breach within the applicable
cure period, and (iii) demand upon the Servicer by the
Trustee or the Master Servicer for compliance with this
Agreement
50. Section 6.03 (Representations and Warranties of the Owner) and Section
6.04 (Remedies for Breach of Representations and Warranties of the
Owner) shall be disregarded for purposes of this Agreement.
51. The parties hereto acknowledge that Section 7.01 (Agency Transfer;
Whole Loan Transfer; Pass Through Transfer) and Section 7.02 (Owner's
Repurchase and Indemnification Obligations) shall be disregarded for
purposes of this Agreement.
52. Section 7.03 (Indemnification; Third Party Claims) is hereby amended
and restated in its entirety to read as follows:
The Servicer shall indemnify the Master Servicer,
the Trustee and the Trust Fund and hold each of them harmless
against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and
expenses that any of them may sustain in any way related to
the failure of the Servicer to perform its duties and service
the Mortgage Loans in compliance with the terms of this
Agreement. The Servicer immediately shall notify the Master
Servicer, and the Trustee if a claim is made by a third party
with respect to this Agreement or if it assumes (with the
prior written consent of the Master Servicer and the Trustee)
the defense of any such claim and the Servicer shall pay all
expenses in connection therewith, including reasonable
counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against any of them
in respect of such claim. The Servicer shall follow any
written instructions which are reasonably accepted servicing
practices within the industry received from the Master
Servicer and the Trustee. The Trust Fund promptly shall
reimburse the Servicer for all amounts advanced by it
pursuant to the two (2) preceding sentences except when the
claim is in any way related to the Servicer's indemnification
pursuant to Section 6.02, or the failure of the Servicer to
service and administer the Mortgage Loans in compliance with
the terms of this Agreement.
The Trust Fund, the Master Servicer and the Trustee,
severally but not jointly, shall indemnify the Servicer and
hold it harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other costs, fees
and expenses that the Servicer may sustain in any way related
to the failure of the Master Servicer or the Trustee to
perform its duties in compliance with the terms of this
Agreement.
53. Section 8.02 (Limitation on Liability of the Servicer and Others) is
hereby amended by changing the word "Owner" in the second line thereof
to "Trust Fund, the Trustee and the Master Servicer"; and by changing
the word "Owner" in the twelfth line thereof to "Master Servicer" and
in the last sentence thereof to "Trust Fund".
54. Section 8.03 (Limitation on Resignation and Assignment by Servicer) is
hereby amended by deleting the first sentence thereof, deleting the
word "Therefore," at the beginning of the second sentence, and
replacing the word "Owner" with "the parties and other signatories
hereto" in each instance.
55. Section 9.01 (Termination for Cause) is hereby amended by:
(a) changing the word "Owner" to "Xxxxxx Capital, the Trustee
or the Master Servicer" in the first sentence and in
clause (a);
(b) changing the word "Owner" to "Xxxxxx Capital, the Trustee
or the Master Servicer" in clause (b);
(c) changing the word "Owner's" in clause (c) to "the Trust
Fund's".
(d) changing the word "Owner" in the clause (i) thereof to
the "Trustee and the Master Servicer".
(e) by changing the word "Owner" in the second line of the
second paragraph of Section 9.01 to "Trustee" and in the
third line of such second paragraph to "Master Servicer".
(f) by replacing the word "Owner" in each place it appears in
the third paragraph of Section 9.01 with "Master
Servicer" and adding the following sentence as the last
sentence to such third paragraph: "Upon a termination of
the Servicer for cause pursuant to this Section 9.01, all
unreimbursed Servicing Fees, Servicing Advances and
Monthly Advances still owing to the Servicer at the time
of such termination shall be paid by the Trust Fund
solely at the time such amounts are received from the
related Mortgage Loans.
(g) by replacing the words "Upon receipt" in the first
sentence of the third paragraph of Section 9.01 with the
words "within 90 days of receipt" and by adding the
following proviso at the end of such sentence:
"provided, however, that the obligation of
the Master Servicer or any Successor Servicer to
make Monthly Advances not made by the defaulting
Servicer shall be effective immediately upon receipt
of such notice by the Servicer.
56. Section 9.02 (Termination Without Cause) is hereby deleted and
replaced with the following:
This Agreement shall terminate upon: (i) the later
of (a) the distribution of the final payment or liquidation
proceeds on the last Mortgage Loan to the Master Servicer (or
advances by the Servicer for the same), and (b) the
disposition of all REO Property acquired upon foreclosure of
the last Mortgage Loan and the remittance of all funds due
hereunder, or (ii) mutual consent of the Servicer, the Master
Servicer and the Trustee in writing or (iii) at the sole
option of the Class X Certificateholder, without cause, upon
30 days written notice. Any such notice of termination shall
be in writing and delivered to the Servicer by registered
mail to the address set forth at the beginning of this
Agreement. The Servicer shall comply with the termination
procedures set forth in Section 10.01 hereof and the
procedures set forth below, provided that, in the event that
the Class X Certificateholder terminates this Agreement
without cause in accordance with subclause (iii) above, the
Class X Certificateholder (and in the event of the failure of
the Class X Certificateholder, Xxxxxx Capital) shall pay the
Servicer from its own funds a termination fee equal to 0.75%
of the aggregate unpaid principal balance of the Mortgage
Loans as of such termination date.
In connection with any such termination referred to
in clause (ii) or (iii) above, the Trust Fund (in the case of
clause (ii)) and the Class X Certificateholder (and in the
event of the failure of the Class X Certificateholder, Xxxxxx
Capital) (in the case of clause (iii)) will be responsible
for reimbursing the Servicer for all unreimbursed
out-of-pocket Servicing Advances within 15 Business Days
following the date of termination and other reasonable and
necessary out-of-pocket costs associated with any transfer of
servicing.
Notwithstanding and in addition to the foregoing, in
the event that (i) a Mortgage Loan becomes delinquent for a
period of 90 days or more (a "Delinquent Mortgage Loan") or
(ii) a Mortgage Loan becomes an REO Property, the Xxxxxx
Capital may at its election terminate this Agreement (a) with
respect to such Delinquent Mortgage Loan or (b) REO Property,
in each case, upon 15 days' written notice to the Servicer.
In the event of such election, Xxxxxx Capital shall reimburse
the Servicer for all unreimbursed out-of-pocket Servicing
Advances and Monthly Advances on the date of termination and
other reasonable and necessary out-of-pocket costs associated
with any transfer of servicing, including, but not limited
to, costs associated with the transfer of the related files
to the successor Servicer.
57. Section 10.01 (Successor to the Servicer) is hereby amended as
follows:
(i) by adding the following parenthetical after the number 9.02
in the second line thereof: (excluding a termination under
clause (iii) of Section 9.02 or a termination under the third
paragraph of section 9.02);
(ii) by changing the word "Owner" in the second line of the first
paragraph to "Master Servicer," and by adding the words ", in
accordance with the Trust Agreement," after the word "shall"
in such second line;
(iii) by adding the following new sentences immediately following
the first sentence of the first paragraph thereof to read as
follows:
Prior to the termination of the Servicer's
responsibilities, rights, duties and obligations under this
Agreement pursuant to clause (iii) of Section 9.02 or the
third paragraph of Section 9.02, the Class X
Certificateholder shall appoint a successor which shall
succeed to all rights and assume all of the responsibilities,
duties and liabilities of the Servicer under this Agreement.
Any successor to the Servicer shall be a Xxxxxxx Mac- or
Xxxxxx Mae-approved Servicer and be subject to the approval
of the Master Servicer, the Depositor and each Rating Agency
as evidenced by a letter from such Rating Agency delivered to
the Trustee that the transfer of servicing will not result in
a qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates.
(iv) by amending the original second sentence of the first
paragraph thereof by (a) changing the word "Owner" to
"Depositor and the Master Servicer":
(v) by deleting the words "by the Owner" in the first sentence of
the second paragraph and by replacing the word "Owner" in the
sixth line of such paragraph with "Trustee" and in the
seventh line of such paragraph with "Master Servicer" and
deleting the words "at the Owner's sole expense" in the
seventh line of the second paragraph;
(vi) by replacing the reference to "Owner" in the second line of
the third paragraph with "Master Servicer" and in the seventh
line thereof with "Trust Fund".
(vii) by replacing the reference to "Owner" in the fifth paragraph
with "Trustee and Master Servicer".
(viii) by inserting the following new paragraph at the end of
Section 10.01.
In the event the Servicer is terminated pursuant to
Section 9.02 (iii) or the third paragraph of Section 9.02,
Xxxxxx Capital shall be responsible for payment from its own
funds without reimbursement of any out-of-pocket costs
incurred by the Servicer and the Master Servicer in
connection with the transfer of the Serviced Mortgage Loans
to a successor servicer.
Except as otherwise provided in this Agreement, all
reasonable costs and expenses incurred in connection with any
transfer of servicing hereunder as a result of termination or
removal of the Servicer for cause pursuant to Section 9.01 or
Section 10.21, including, without limitation, the costs and
expenses of the Master Servicer or any other Person in
appointing a successor servicer, or of the Master Servicer in
assuming the responsibilities of the Servicer hereunder, or
of transferring the Servicing Files and the other necessary
data to the successor servicer shall be paid by the
terminated, removed or resigning Servicer from its own funds
without reimbursement.
58. Section 10.02 (Closing), Section 10.03 (Closing Documents) and Section
10.04 (Appointment and Designation of Master Servicer) shall be
disregarded for purposes of this Agreement.
59. Section 10.06 (Protection of Confidential Information) is hereby
amended by replacing the word "Owner's" with "Trustee's".
60. Section 10.12 (Further Agreements), Section 10.11 (Intention of the
Parties) are hereby amended by replacing the reference to "Owner" with
"Trustee on behalf of the Trust Fund".
61. Section 10.14 (Successor and Assigns; Assignment of Agreement) is
hereby amended by replacing the references to "Owner" with "Trustee
and the Master Servicer".
62. New Sections 10.19 (Intended Third Party Beneficiaries) is added to
this Agreement to read as follows:
Section 10.19 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 Master Servicer 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 Servicer shall have the same
obligations to the Master Servicer and the Trustee as if they
were parties to this Agreement, and the Master Servicer 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 Servicer shall only take
direction from the Master Servicer (if direction by the
Master Servicer is required under this Agreement) unless
otherwise directed by this Agreement or the Loss Mitigation
Advisory Agreement. Notwithstanding the foregoing, all rights
and obligations of the Master Servicer and the Trustee
hereunder (other than the right to indemnification) shall
terminate upon termination of the Trust Agreement and of the
Trust Fund pursuant to the Trust Agreement.
Schedule I
Schedule of Serviced Mortgage Loans
Schedule II
Schedule of Serviced Mortgage Loans
covered by MGIC PMI Insurance Policy
Execution
==============================================================================
SERVICING AGREEMENT
between
XXXXXX CAPITAL,
A DIVISION OF XXXXXX BROTHERS HOLDINGS INC.,
Owner
and
COUNTRYWIDE HOME LOANS, INC.,
Servicer
Dated as of January 29, 2001
Fixed and Adjustable Rate Mortgage Loans
[Group FF-2001-1]
==============================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
ARTICLE II
OWNER'S ENGAGEMENT OF SERVICER TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Servicing Files........................................12
Section 2.02 Books and Records............................................................................13
Section 2.03 Commencement of Servicing Responsibilities...................................................13
Section 2.04 Custodial Agreement..........................................................................13
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Servicer to Service..........................................................................14
Section 3.02 Liquidation of Mortgage Loans................................................................15
Section 3.03 Collection of Mortgage Loan Payments.........................................................17
Section 3.04 Establishment of and Deposits to Custodial Account...........................................17
Section 3.05 Permitted Withdrawals From Custodial Account.................................................18
Section 3.06 Establishment of and Deposits to Escrow Account..............................................19
Section 3.07 Permitted Withdrawals From Escrow Account....................................................20
Section 3.08 Notification of Adjustments..................................................................21
Section 3.09 Completion and Recordation of Assignment of Mortgage.........................................21
Section 3.10 Protection of Accounts.......................................................................22
Section 3.11 Payment of Taxes, Insurance and Other Charges................................................22
Section 3.12 Maintenance of Hazard Insurance..............................................................23
Section 3.13 Maintenance of Mortgage Blanket Insurance....................................................24
Section 3.14 Maintenance of Fidelity Bond and Errors and Omissions Insurance..............................24
Section 3.15 Inspections..................................................................................25
Section 3.16 Restoration of Mortgaged Property............................................................25
Section 3.17 Maintenance of PMI Policy; Claims............................................................26
Section 3.18 Title, Management and Disposition of REO Property............................................27
Section 3.19 Real Estate Owned Reports....................................................................28
Section 3.20 Liquidation Reports..........................................................................29
Section 3.21 Reports of Foreclosures and Abandonments of Mortgaged Property...............................29
Section 3.22 PMI Obligations..............................................................................29
ARTICLE IV
PAYMENTS TO OWNER
Section 4.01 Remittances..................................................................................29
Section 4.02 Statements to Owner..........................................................................29
Section 4.03 Monthly Advances by Servicer.................................................................29
ARTICLE V
GENERAL SERVICING PROCEDURES
Section 5.01 Servicing Compensation.......................................................................31
Section 5.02 Transfers of Mortgaged Property..............................................................31
Section 5.03 Right to Examine Servicer Records............................................................32
Section 5.04 Servicing Tape...............................................................................33
Section 5.05 Satisfaction of Mortgages and Release of Mortgage Files......................................33
Section 5.06 Annual Statement as to Compliance............................................................33
Section 5.07 Annual Independent Public Accountants' Servicing Report......................................34
ARTICLE VI
REPRESENTATIONS, WARRANTIES
AND AGREEMENTS
Section 6.01 Representations, Warranties and Agreements of the Servicer...................................34
Section 6.02 Remedies for Breach of Representations and Warranties of the Servicer........................36
Section 6.03 Representations and Warranties of the Owner..................................................36
Section 6.04 Remedies for Breach of Representations and Warranties of the Owner...........................38
ARTICLE VII
WHOLE LOAN TRANSFER; PASS-THROUGH TRANSFER
Section 7.01 Removal of Mortgage Loans from Inclusion Under this Agreement Upon an Agency
Transfer, a Pass-Through Transfer or a Whole Loan Transfer on One or More
Reconstitution Dates.......................................................................39
Section 7.02 Owner's Repurchase and Indemnification Obligations...........................................42
Section 7.03 Indemnification; Third Party Claims..........................................................43
ARTICLE VIII
THE SERVICER
Section 8.01 Merger or Consolidation of the Servicer......................................................44
Section 8.02 Limitation on Liability of the Servicer and Others...........................................44
Section 8.03 Limitation on Resignation and Assignment by Servicer.........................................44
ARTICLE IX
TERMINATION
Section 9.01 Termination for Cause........................................................................45
Section 9.02 Termination Without Cause....................................................................47
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Successor to the Servicer....................................................................48
Section 10.02 Closing......................................................................................49
Section 10.03 Closing Documents............................................................................49
Section 10.04 Appointment and Designation of Master Servicer...............................................50
Section 10.05 Costs........................................................................................50
Section 10.06 Protection of Confidential Information.......................................................51
Section 10.07 Notices......................................................................................51
Section 10.08 Severability Clause..........................................................................52
Section 10.09 No Personal Solicitation.....................................................................52
Section 10.10 Counterparts.................................................................................53
Section 10.11 Place of Delivery and Governing Law..........................................................53
Section 10.12 Further Agreements...........................................................................53
Section 10.13 Intention of the Parties.....................................................................53
Section 10.14 Successors and Assigns; Assignment of Agreement..............................................53
Section 10.15 Waivers......................................................................................53
Section 10.16 Exhibits.....................................................................................54
Section 10.17 General Interpretive Principles..............................................................54
Section 10.18 Reproduction of Documents....................................................................54
EXHIBITS
EXHIBIT A MORTGAGE LOAN SCHEDULE
EXHIBIT B INTENTIONALLY OMITTED
EXHIBIT C CUSTODIAL ACCOUNT LETTER AGREEMENT
EXHIBIT D ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT E OFFICER'S CERTIFICATE FOR CLOSING
EXHIBIT F CUSTODIAL AGREEMENT
EXHIBIT G FORM OF OPINION OF COUNSEL OF THE SERVICER
EXHIBIT H INTENTIONALLY OMITTED
EXHIBIT I FORM OF ASSIGNMENT AND ASSUMPTION
SERVICING AGREEMENT
This is a Servicing Agreement (the "Agreement"), dated as of
January 29, 2001, by and between Xxxxxx Capital, A Division of Xxxxxx Brothers
Holdings Inc., having an office at 3 World Financial Center, New York, New York
10285-1200 (the "Owner") and Countrywide Home Loans, Inc., having an office at
0000 Xxxx Xxxxxxx, Xxxxxxxxx, XX 00000 (the "Servicer")
W I T N E S S E T H
WHEREAS, the Owner owns certain first lien fixed and
adjustable rate mortgage loans listed on the Mortgage Loan Schedule annexed
hereto as Exhibit A (the "Mortgage Loans");
WHEREAS, the Servicer has purchased the right to service the
Mortgage Loans pursuant to that certain Loan Servicing Purchase and Sale
Agreement between Owner, as Seller, and Servicer, as Buyer, dated as of the
date hereof;
WHEREAS, the Owner and the Servicer desire to set forth the
terms and conditions of the servicing responsibilities associated with the
Mortgage Loans; and
WHEREAS, the Owner desires to sell some or all of the
Mortgage Loans from time to time (a) to Xxxxxx Xxx under its Cash Purchase
Program or its MBS Swap Program (Special Servicing Option) or to Xxxxxxx Mac
under its Xxxxxxx Xxx Xxxx Program or Gold PC Program (each an "Agency
Transfer"); (b) to one or more third party purchasers in one or more whole loan
pools (each a "Whole Loan Transfer"); or (c) directly or indirectly, to certain
trusts to be formed as part of publicly-issued or privately placed, rated or
unrated, mortgage pass-through transactions (each a "Pass-Through Transfer"),
in any or all cases (subject to the terms of this Agreement) retaining the
Servicer to service the Mortgage Loans.
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and for other good and reasonable consideration, the
receipt and adequacy of which is hereby acknowledged, the Owner and Servicer
hereby agree as follows:
ARTICLE I
DEFINITIONS
The following terms are defined as follows (except as
otherwise agreed in writing by the parties):
Accepted Servicing Practices: With respect to any Mortgage
Loan, those mortgage servicing practices of prudent mortgage servicing
institutions which service mortgage loans of the similar type and quality as
such Mortgage Loans in the jurisdiction where the related Mortgaged Property is
located.
Agency Transfer: The sale or transfer by Owner of some or all
of the Mortgage Loans to Xxxxxx Mae under its Cash Purchase Program or its MBS
Swap Program (Special Servicing Option) or to Xxxxxxx Mac under its Xxxxxxx Xxx
Xxxx Program or Gold PC Program, retaining the Company as "servicer
thereunder".
Agreement: This Servicing Agreement and all amendments hereof
and supplements hereto for the servicing and administering of the Mortgage
Loans.
Ancillary Income: All income derived from the Mortgage Loans,
other than Servicing Fees and prepayment premiums, charges or penalties,
including but not limited to, late charges, fees received with respect to
checks or bank drafts returned by the related bank for non-sufficient funds,
assumption fees, optional insurance administrative fees and all other
incidental fees and charges. The Servicer shall retain all Ancillary Income to
the extent not required to be deposited into the Custodial Account.
ARM Mortgage Loan: A Mortgage Loan pursuant to which the
interest rate shall be adjusted from time to time in accordance with the
related Mortgage Note.
Assignment of Mortgage: An assignment of the Mortgage, notice
of transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the transfer of the Mortgage to the party indicated therein.
Best Efforts: Efforts determined to be reasonably diligent by
the Owner or Servicer, as the case may be, in its sole discretion. Such efforts
do not require the Owner or Servicer, as the case may be, to enter into any
litigation, arbitration or other legal or quasi-legal proceeding, nor do they
require the Owner or Servicer, as the case may be, to advance or expend fees or
sums of money in addition to those specifically set forth in this Agreement.
BIF: The Bank Insurance Fund, or any successor thereto.
Business Day: Any day other than (i) a Saturday or Sunday, or
(ii) a federal holiday.
Closing Date: February 1, 2001.
Condemnation Proceeds: All awards of settlements in respect
of a Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Custodial Account: The separate account or accounts created
and maintained pursuant to Section 3.04.
Custodial Agreement: The agreement governing the retention of
the originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan documents, which is annexed hereto as Exhibit F, as the same may
be amended, modified or replaced from time to time.
Custodian: The Custodian under the Custodial Agreement, or
its successor in interest or assigns or any successor to the Custodian under
the Custodial Agreement as provided therein.
Cut-off Date: January 31, 2001.
Determination Date: The fifteenth (15th) day of the calendar
month of the related Remittance Date (or if such day is not a Business Day, the
Business Day immediately preceding such day).
Due Date: The day of the month on which the Monthly Payment
is due on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to each Remittance Date, the period
commencing on the second day of the month preceding the month of the Remittance
Date and ending in the first day of the month of the Remittance Date.
Duff & Xxxxxx: Xxxx & Xxxxxx Credit Rating Co. or any
successor thereto.
Eligible Investments: Any one or more of the obligations and
securities listed below which investment provides for a date of maturity not
later than the Determination Date in each month:
(a) direct general obligations of, or obligations fully and
unconditionally guaranteed as to the timely payment of 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,
Federal Housing Administration debentures, Xxxxxxx Mac senior debt obligations,
and Xxxxxx Xxx senior debt obligations, but excluding any of such securities
whose terms do not provide for payment of a fixed dollar amount upon maturity
or call for redemption;
(b) Federal Housing Administration debentures; provided, that
any such investment shall be rated in one of the two highest ratings categories
by each Rating Agency;
(c) Xxxxxxx Mac participation certificates which guaranty
timely payment of principal and interest and senior debt obligations;
(d) Consolidated senior debt obligations of any Federal Home
Loan Bank;
(e) Xxxxxx Xxx mortgage-backed securities (other than
stripped mortgage securities which are valued greater than par on the portion
of unpaid principal) and senior debt obligations;
(f) Federal funds, certificates of deposit time deposits, and
bankers' acceptances (having original maturities of not more than 365 days) of
any domestic bank, the short-term debt obligations of which have been rated F-1
or better by Fitch, A-1 or better by Standard & Poor's and P-1 by Moody's;
(g) Deposits of any bank or savings and loan association (the
long-term deposit rating of which is Baa3 or better by Moody's and BBB by each
of Standard & Poor's and Fitch) which has combined capital, surplus and
undivided profits of at least $50,000,000 which deposits are insured by the
FDIC and held up to the limits insured by the FDIC;
(h) Investment agreements provided:
(i) The agreement is with a bank or insurance
company which has unsecured, uninsured and unguaranteed senior debt
obligations rated Aa2 or better by Moody's and AA or better by each of
Standard & Poor's and Fitch, or is the lead bank of a parent bank
holding company with an uninsured, unsecured and unguaranteed senior
debt obligation meeting such rating requirements;
(ii) Moneys invested thereunder may be withdrawn without
any penalty, premium or charge upon not more than one day's notice
(provided such notice may be amended or canceled at any time prior to
the withdrawal date);
(iii) The agreement is not subordinated to any other
obligations of such insurance company or bank;
(iv) The same guaranteed interest rate will be paid on any
future deposits made pursuant to such agreement; and
(v) The Owner receives an opinion of counsel (at the
expense of the party requesting the investment) that such agreement is
an enforceable obligation of such insurance company or bank.
(i) Repurchase agreements collateralized by securities
described in (a), (c), or (e) above with any registered broker/dealer subject
to the Securities Investors Protection Corporation's jurisdiction and subject
to applicable limits therein promulgated by Securities Investors Protection
Corporation or any commercial bank, if such broker/dealer or bank has an
uninsured, unsecured and unguaranteed short-term or long-term obligation rated
P-1 or Aa2, respectively, or better by Moody's, A-1 or AA, respectively, or
better by Standard & Poor's and A-1 or AA, respectively, or better by Fitch,
provided:
(i) A master repurchase agreement or specific
written repurchase agreement governs the transaction;
(ii) The securities are held free and clear of any
lien by the Owner or an independent third party acting solely as agent
for the Owner, and such third party is (a) a Federal Reserve Bank or
(b) a bank which is a member of the FDIC and which has combined
capital, surplus and undivided profits of not less than $125 million,
and the Owner shall have received written confirmation from such third
party that it holds such securities, free and clear of any lien, as
agent for the Owner;
(iii) A perfected first security interest under the
Uniform Commercial Code, or book entry procedures prescribed at 31 CFR
306.1 et seq. or 31 CFR 350.0 et seq., in such securities is created
for the benefit of the Owner;
(iv) The repurchase agreement has a term of thirty
days or less and the Owner will value the collateral securities no
less frequently than monthly and will liquidate the collateral
securities if any deficiency in the required collateral percentage is
not restored within two business days of such valuation; and
(v) The fair market value of the collateral
securities in relation to the amount of the repurchase obligation,
including principal and interest, is equal to at least 106%;
(j) Commercial paper (having original maturities of not more
than 270 days) rated in the highest short-term rating categories of each Rating
Agency;
(k) Investments in no load money market funds registered
under the Investment Company Act of 1940, whose shares are registered under the
Securities Act and rated Aaa by Moody's, AAAm or AAAm-G by Standard & Poor's
and AAA, if rated by Fitch; and
(l) such other investments bearing interest or sold at a
discount approved in writing by the Owner in its sole discretion
provided that no instrument described above shall evidence either the right to
receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provided a yield to maturity at par greater than 120% of the
yield to maturity at par of the underlying obligations; and provided, further
that all instruments described hereunder shall mature at par on or prior to the
next succeeding Payment Date unless otherwise provided in this Agreement and
that no instrument described hereunder may be purchased at a price greater than
par if such instrument may be prepaid or called at a price less than its
purchase price prior to stated maturity.
Notwithstanding anything herein to the contrary, with respect
to Mortgage Loans subject to a Whole Loan Transfer or a Pass-Through Transfer,
in the event that the applicable Reconstitution Agreement has a more limiting
definition of "Eligible Investments", then the definition contained in such
Reconstitution Agreement shall apply to such Mortgage Loans.
Errors and Omissions Insurance Policy: An errors and
omissions insurance policy to be maintained by the Servicer pursuant to Section
3.14.
Escrow Account: The separate account or accounts operated and
maintained pursuant to Section 3.05.
Escrow Mortgage Loans: The Mortgage Loans for which the
Servicer is to establish an Escrow Account for items constituting Escrow
Payments.
Escrow Payments: With respect to any Mortgage Loan, the
amounts constituting ground rents, taxes, assessments, water rates, sewer
rents, municipal charges, mortgage blanket insurance premiums, fire and hazard
insurance premiums, condominium charges, and any other payments required to be
escrowed by the Mortgagor with the mortgagee pursuant to the Mortgage or any
other related document.
Event of Default: Any event set forth in Section 9.01.
Xxxxxx Xxx: Xxxxxx Xxx, or any successor thereto.
Xxxxxx Mae Guides: The Xxxxxx Xxx Selling Guide and the
Xxxxxx Mae Servicing Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
Fidelity Bond: A fidelity bond to be maintained by the
Servicer pursuant to the Section 3.14.
First Remittance Date: With respect to each Mortgage Loan,
the 18th day of the month following the month in which the Closing Date occurs,
or if such 18th day is not a Business Day, the first Business Day immediately
preceding such 18th day.
Fitch: Fitch IBCA, Inc. or any successor thereto.
Xxxxxxx Mac: Xxxxxxx Mac, or any successor thereto.
Index: With respect to each ARM Mortgage Loan and with
respect to each related interest rate adjustment date, the index as specified
in the related Mortgage Note.
Insurance Proceeds: With respect to each Mortgage Loan,
proceeds of insurance policies insuring the Mortgage Loan or the related
Mortgaged Property.
LBB: Xxxxxx Brothers Bank, FSB
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale or
otherwise, or the sale of the related REO Property, if the Mortgaged Property
is acquired in satisfaction of the Mortgage Loan.
"Monthly Advance" means with respect to each Remittance Date
and each Mortgage Loan, an amount equal to the Monthly Payment (with the
interest portion of such Monthly Payment adjusted to the Mortgage Loan
Remittance Rate) that was due on the Mortgage Loan, and that (i) was delinquent
at the close of business on the first day of the month in which such Remittance
Date occurs and (ii) was not the subject of a previous Monthly Advance, but
only to the extent that such amount is expected, in the reasonable judgment of
the Servicer, to be recoverable from collections or other recoveries in respect
of such Mortgage Loan. To the extent that the Servicer determines that any such
amount is not recoverable from collections or other recoveries in respect of
such Mortgage Loan, such determination shall be evidenced by a certificate of a
Servicing Officer delivered to the Owner setting forth such determination and
the procedures and considerations of the Servicer forming the basis of such
determination, which shall include a copy of any broker's price opinion and any
other information or reports obtained by the Servicer which may support such
determinations.
Monthly Payment: The scheduled monthly payment of principal
and interest on a Mortgage Loan.
Monthly Remittance Advice: The monthly report required to be
furnished by Servicer to Owner pursuant to Section 4.02.
Moody's: Xxxxx'x Investors Service, Inc. or any successor
thereto.
Mortgage: The mortgage, deed of trust or other instrument
securing a Mortgage Note, which creates a first lien on an unsubordinated
estate in fee simple in real property securing the Mortgage Note.
Mortgage Blanket Insurance Policy: A mortgage blanket hazard
insurance policy as described in Section 3.13.
Mortgage File: The items pertaining to a particular Mortgage
Loan held by the Custodian, and any additional documents required to be
delivered to the Custodian pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne on
a Mortgage Note. With respect to ARM Mortgage Loans, the Mortgage Interest Rate
shall be adjusted from time to time in accordance with the provisions of the
Mortgage Note.
Mortgage Loan: An individual servicing retained Mortgage Loan
which is the subject of this Agreement, each Mortgage Loan subject to this
Agreement being identified on the Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage Loan documents, the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds, and all other rights, benefits, proceeds
and obligations arising from or in connection with such Mortgage Loan.
Mortgage Loan Remittance Rate: With respect to each Mortgage
Loan, the annual rate of interest remitted to the Owner, which shall be equal
to the Mortgage Interest Rate minus the Servicing Fee Rate.
Mortgage Loan Schedule: The schedule of Mortgage Loans that
are subject to this Agreement setting forth information with respect to such
Mortgage Loans, which schedule is annexed hereto as Exhibit A.
Mortgage Note: The note or other evidence of the indebtedness
of a Mortgagor secured by a Mortgage.
Mortgaged Property: The real property securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Non-Escrow Mortgage Loan: Any Mortgage Loan which is not an
Escrow Mortgage Loan.
Officer's Certificate: A certificate signed by the Chairman
of the Board or the Vice Chairman of the Board or the President or a Vice
President or an assistant Vice President and by the Treasurer or the Secretary
or one of the Assistant Treasurers or Assistant Secretaries of the Owner or
Servicer, as applicable, and delivered as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
an employee of the Servicer, reasonably acceptable to the Owner, 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 who (i) is in fact independent of the Servicer and any master servicer
of the Mortgage Loans, (ii) does not have any material direct or indirect
financial interest in the Servicer or any master servicer of the Mortgage Loans
or in an affiliate of either and (iii) is not connected with the Servicer or
any master servicer of the Mortgage Loans as an officer, employee, director or
person performing similar functions.
Originator: The originator of the related Mortgage Loan.
Owner: Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings
Inc., or its successors in interest and assigns.
Pass-Through Transfer: The sale or transfer of some or all of
the Mortgage Loans to (i) a trust to be formed as part of a publicly-issued
and/or privately placed, rated or unrated, mortgage pass-through transaction,
or (ii) to Xxxxxx Mae, Xxxxxxx Mac or GNMA on a negotiated basis, in each case,
retaining the Servicer as "servicer" (with or without a master servicer)
thereunder.
Person: Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
PMI Policy: A policy of primary mortgage guaranty insurance
issued by a Qualified Insurer, as required by this Agreement with respect to
certain Mortgage Loans.
Prepayment Interest Shortfall Amount: With respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part
during any Due Period, which Principal Prepayment was applied to such Mortgage
Loan prior to such Mortgage Loan's Due Date in such Due Period, the amount of
interest (net of the related Servicing Fee for Principal Prepayments in full
only) that would have accrued on the amount of such Principal Prepayment during
the period commencing on the date as of which such Principal Prepayment was
applied to such Mortgage Loan and ending on the day immediately preceding such
Due Date, inclusive.
Prime Rate: The prime rate announced to be in effect from
time to time, as published as the average rate in The Wall Street Journal
Northeast Edition.
Principal Prepayment: Any payment or other recovery of
principal on a Mortgage Loan which is received in advance of its scheduled Due
Date, including any prepayment charge or premium thereon and which is not
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
Principal Prepayment Period: The month preceding the month in
which the related Remittance Date occurs.
Qualified Depository: A depository the accounts of which are
insured by the FDIC through the BIF or the SAIF and the debt obligations of
which are rated AA or better by Standard & Poor's.
Qualified Insurer: A mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by Xxxxxx Mae and Xxxxxxx Mac.
Rating Agency: Any of Fitch, Moody's, Standard & Poor's, Duff
& Xxxxxx or their respective successors designated by the Owner.
Reconstitution Agreements: The agreement or agreements
entered into by the Owner, the Servicer, Xxxxxx Mae or Xxxxxxx Mac or certain
third parties on the Reconstitution Date(s) with respect to any or all of the
Mortgage Loans serviced hereunder, in connection with an Agency Transfer, a
Pass-Through Transfer or a Whole Loan Transfer as set forth in Section 7.01,
including, but not limited to, (i) a Xxxxxx Mae Mortgage Selling and Servicing
Contract, a Pool Purchase Contract, and any and all servicing agreements and
tri-party agreements reasonably required by Xxxxxx Xxx with respect to a Xxxxxx
Mae Transfer, (ii) a Purchase Contract and all purchase documents associated
therewith as set forth in the Xxxxxxx Xxx Xxxxxxx' & Servicers' Guide, and any
and all servicing agreements and tri-party agreements reasonably required by
Xxxxxxx Mac with respect to a Xxxxxxx Mac Transfer, and (iii) a pooling and
servicing Agreement and/or a subservicing/master servicing agreement and
related custodial/trust agreement and related documents with respect to a
Pass-Through Transfer. Such agreement or agreements shall prescribe the rights
and obligations of the Servicer in servicing the related Mortgage Loans and
shall provide for servicing compensation to the Servicer (calculated on a
weighted average basis for all the related Mortgage Loans as of the
Reconstitution Date), net of any guarantee fees due Xxxxxx Mae or Xxxxxxx Mac,
if applicable, at least equal to the Servicing Fee and Ancillary Income due the
Servicer in accordance with this Agreement or the servicing fee required
pursuant to the Reconstitution Agreement, whichever is greater. The form of
relevant Reconstitution Agreement to be entered into by the Owner and/or master
servicer or trustee and the Servicer with respect to Pass-Through Transfers
and/or Whole Loan Transfers shall be reasonably satisfactory in form and
substance to the Owner and the Servicer (giving due regard to any rating or
master servicing requirements) and the representations and warranties and
servicing provisions contained therein shall be substantially similar to those
contained in this Agreement and shall not contain any obligations materially
more onerous than those contained herein that materially increase the expense
or obligations of the Servicer, unless otherwise mutually agreed by the
parties.
Reconstitution Date: The date or dates on which any or all of
the Mortgage Loans serviced under this Agreement shall be removed from this
Agreement and reconstituted as part of an Agency Transfer, a Pass-Through
Transfer or a Whole Loan Transfer pursuant to Section 7.01 hereof. On such date
or dates, the Mortgage Loans transferred shall cease to be covered by this
Agreement and the Servicer's servicing responsibilities shall cease under this
Agreement with respect to the related transferred Mortgage Loans.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Documents: The document or documents creating and
governing the administration of a EMIC.
REMIC Eligible Mortgage Loan: A Mortgage Loan held by a REMIC
which satisfies and/or complies with all applicable REMIC Provisions.
REMIC Provisions: Provisions of the federal income tax law
relating to a REMIC, which appear at Section 860A through 86OG of Subchapter M
of Chapter 1, Subtitle A of the Code, and related provisions, and regulations,
rulings or pronouncements promulgated thereunder, as the foregoing may be in
effect from time to time.
Remittance Date: The remittance date shall be the 18th day of
each calendar month (or if such 18th day is not a Business Day, the first
Business Day immediately preceding).
REO Disposition: The final sale by the Servicer of any REO
Property.
REO Disposition Proceeds: All amounts received with respect
to an REO Disposition pursuant to Section 3.18.
REO Property: A Mortgaged Property acquired by the Servicer
on behalf of the Owner through foreclosure or by deed in lieu of foreclosure,
as described in Section 3.18.
Repurchase Price: With respect to any Mortgage Loan, a price
equal to (i) the Stated Principal Balance of the Mortgage Loan plus (ii)
interest on such Stated Principal Balance at the Mortgage Loan Remittance Rate,
in each case from the date on which interest has last been paid and distributed
to the Owner to the date of repurchase, less amounts received, if any, plus
amounts advanced, if any, by any servicer, in respect of such repurchased
Mortgage Loan.
SAIF: The Savings Association Insurance Fund, or any
successor thereto.
Servicer: Countrywide Home Loans, Inc., or its successor in
interest or assigns or any successor to the Servicer under this Agreement as
herein provided.
Servicing Advances: All customary, reasonable and necessary
"out of pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) incurred in the performance by the Servicer of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
restoration, inspection and protection of the Mortgaged Property, (b) any
enforcement or administrative or judicial proceedings, including foreclosures,
(c) the management and liquidation of any REO Property, and (d) compliance with
the obligations under Section 3.01, 3.02, 3.03, 3.04, 3.07, 3.12, 3.13, 3.16
and 3.18.
Servicing Fee: With respect to each Mortgage Loan that has
not been removed from this Agreement as part of an Agency Transfer, a
Pass-Through Transfer or a Whole Loan Transfer and with respect to each
Mortgage Loan that has been removed from this agreement as part of an Agency
Transfer, a Pass-Through Transfer or a Whole Loan Transfer and subsequently
repurchased by the Owner pursuant to Section 7.02 hereof and again becoming
subject to this Agreement, the monthly amount of the annual fee the Owner shall
pay to the Servicer, which shall, for a period of one full month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the
outstanding principal balance of such Mortgage Loan. Such fee shall be payable
monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage Loan is computed.
The obligation of the Owner to pay the Servicing Fee is limited to, and the
Servicing Fee is payable solely from, the interest portion (including
recoveries with respect to interest from Liquidation Proceeds, to the extent
permitted by Section 3.05) of such Monthly Payment collected by the Servicer,
or as otherwise provided under Section 3.05.
Servicing Fee Rate: With respect to all Mortgage Loans, a
rate equal to 0.50% per annum.
Servicing File: The items pertaining to a particular Mortgage
Loan including, but not limited to, the computer files, data disks, books,
records, data tapes, notes, and all additional documents generated as a result
of or utilized in originating and/or servicing each Mortgage Loan, which are
held in trust for the Owner by the Servicer.
Servicing Officer: Any officer of the 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 the Servicer to the
Owner upon request, as such list may from time to time be amended.
Standard & Poor's: Standard and Poor's Ratings Service, a
division of the XxXxxx-Xxxx Companies, Inc. or any successor thereto.
Stated Principal Balance: As to each Mortgage Loan, (i) the
principal balance of the Mortgage Loan at the Cut-off Date after giving effect
to payments of principal due on or before such date, whether or not received,
minus (ii) all amounts previously distributed to the Owner with respect to the
related Mortgage Loan representing payments or recoveries of principal or
advances in lieu thereof.
Whole Loan Transfer: The sale or transfer of some or all of
the Mortgage Loans to a third party purchaser in a whole loan transaction
pursuant to a seller's warranties and servicing agreement or a participation
and servicing agreement, retaining the Servicer as "servicer" thereunder.
ARTICLE II
OWNER'S ENGAGEMENT OF SERVICER TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of
Servicing Files.
The Owner does hereby contract with the Servicer, subject to
the terms of this Agreement, for the servicing of the Mortgage Loans. The Owner
shall use its Best Efforts to cause to be delivered the Servicing Files with
respect to the Mortgage Loans listed on the Mortgage Loan Schedule and the
Servicer shall hold the Servicing Files actually delivered to the Servicer in
trust for the Owner pursuant to this Agreement. Each Servicing File shall be
held by the Servicer in order to service the Mortgage Loans pursuant to this
Agreement and are and shall be held in trust by the Servicer for the benefit of
the Owner as the owner thereof. The Servicer's possession of any portion of the
Mortgage Loan documents shall be at the will of the Owner for the sole purpose
of facilitating servicing of the related Mortgage Loan pursuant to this
Agreement, and such retention and possession by the Servicer shall be in a
custodial capacity only. The ownership of each Mortgage Note, Mortgage, and the
contents of the Servicing File shall be vested in the Owner and the ownership
of all records and documents with respect to the related Mortgage Loan prepared
by or which come into the possession of the Servicer shall immediately vest in
the Owner and shall be retained and maintained, in trust, by the Servicer at
the will of the Owner in such custodial capacity only. The portion of each
Servicing File retained by the Servicer pursuant to this Agreement shall be
segregated from the other books and records of the Servicer and shall be
appropriately marked to clearly reflect the ownership of the related Mortgage
Loan by the Owner. The Servicer shall release from its custody the contents of
any Servicing File retained by it only in accordance with this Agreement.
Section 2.02 Books and Records.
Record title to each Mortgage and the related Mortgage Note
shall remain in the name of (i) the Owner, (ii) the Servicer or (iii) in the
name as the Owner shall designate. The Owner or its designee shall prepare and
record any Assignments of Mortgage required pursuant to this Section 2.02.
Xxxxxx Capital shall pay all necessary fees associated with the initial
preparation, endorsement, and recording of the Assignments of Mortgage. The
Owner shall pay for any fee associated with the preparation, endorsement, or
recording of any subsequent Assignments of Mortgage. Additionally, the Owner or
its designee shall prepare and execute, at the expense of Xxxxxx Capital, any
note endorsements in connection with any and all Reconstitution Agreements. All
rights arising out of the Mortgage Loans shall be vested in the Owner. All
funds, other than Servicing Fees and other amounts owed to the Servicer,
received on or in connection with a Mortgage Loan shall be received and held by
the Servicer in trust for the benefit of the Owner as the owner of the Mortgage
Loans pursuant to the terms of this Agreement.
Section 2.03 Commencement of Servicing Responsibilities.
Effective as of the Closing Date, the Owner hereby appoints
the Servicer to perform, and the Servicer hereby assumes and accepts such
appointment for, all servicing responsibilities for the related Mortgage Loans
on the Mortgage Loan Schedule.
Section 2.04 Custodial Agreement.
Xxxxxx Capital shall be responsible for, as and when due, (i)
any and all initial document review fees, (ii) initial and final certification
fees and recertification fees, and (iii) any costs associated with correcting
any deficiencies identified in connection with such review(s). The Servicer
shall be responsible for, as and when due, (x) any and all annual and
warehousing fees of the Custodian, (y) any and all termination fees in the
event the Custodian is terminated by the Servicer, and (z) any and all fees due
in connection with the deposit or retrieval of a Mortgage Loan document or
documents.
The Servicer shall forward to the Custodian original
documents evidencing an assumption, modification, consolidation or extension of
any Mortgage Loan entered into in accordance with this Agreement within two (2)
weeks of their execution and shall provide the original of any document
submitted for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy of the
original within 180 days of its submission for recordation. In the event the
Servicer cannot provide a copy of such document certified by the public
recording office within such 180 day period, an Officer's Certificate of the
Servicer which shall (A) identify the recorded document, (B) state that the
recorded document has not been delivered to the Owner due solely to a delay
caused by the public recording office, (C) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, if known, and (D) specify the date the applicable
recorded document is expected to be delivered to the Owner, and upon receipt of
a copy of such document certified by the public recording office, the Servicer
shall immediately deliver such document to the Owner. In the event the
appropriate public recording office will not certify as to the accuracy of such
document, the Servicer shall deliver a copy of such document certified by an
Officer's Certificate of the Servicer to be a true and complete copy of the
original to the Owner.
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Servicer to Service.
From and after the Closing Date, the Servicer, as an
independent contractor, shall service and administer the Mortgage Loans
pursuant to this Agreement and shall have full power and authority, acting
alone, to do any and all things in connection with such servicing and
administration which the Servicer may deem necessary or desirable, consistent
with the terms of this Agreement and with Accepted Servicing Practices.
Consistent with the terms of this Agreement, the 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 the Servicer's reasonable and prudent
determination such waiver, modification, postponement or indulgence is not
materially adverse to the Owner, provided, however, that the Servicer shall not
make any future advances with respect to a Mortgage Loan and (unless the
Mortgagor is in default with respect to the Mortgage Loan or such default is,
in the judgment of the Servicer, imminent and the Servicer has obtained the
prior written consent of the Owner) the Servicer shall not permit any
modification with respect to any Mortgage Loan that would change the Mortgage
Interest Rate, defer or forgive the payment of principal or interest, reduce or
increase the outstanding principal balance (except for actual payments of
principal) or change the final maturity date on such Mortgage Loan. With
respect to a Reconstitution Agreement, in the event of any such modification
which permits the deferral of interest or principal payments on any Mortgage
Loan, the Servicer shall, on the Business Day immediately preceding the
Remittance Date in any month in which any such principal or interest payment
has been deferred, deposit in the Custodial Account from its own funds, in
accordance with Section 3.04, the difference between (a) such month's principal
and one month's interest at the Mortgage Loan Remittance Rate on the unpaid
principal balance of such Mortgage Loan and (b) the amount paid by the
Mortgagor. Without limiting the generality of the foregoing, the Servicer shall
continue, and is hereby authorized and empowered, to execute and deliver on
behalf of itself and the 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 Properties. If reasonably required by the Servicer, the Owner shall
furnish the Servicer with any powers of attorney and other documents necessary
or appropriate to enable the Servicer to carry out its servicing and
administrative duties under this Agreement. Promptly after execution thereof,
the Servicer shall forward to the Owner copies of documents evidencing any
assumption, modification, consolidation or extension of any Mortgage Loan
approved by the Servicer.
In servicing and administering the Mortgage Loans, the
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 Servicing Practices where such practices do not conflict with the
requirements of this Agreement, and the Owner's reliance on the Servicer.
Absent written consultation and approval by the Owner, as
specified in this Section 3.01, the Servicer may take actions relative to the
servicing and administration of the Mortgage Loans that are consistent with
Accepted Servicing Practices.
In addition to the provision set forth in this Section 3.01,
if a REMIC election is made with respect to the arrangement under which any of
the Mortgage Loans or REO Properties are held, then, with respect to such
Mortgage Loans and/or REO Properties, and notwithstanding the terms of this
Agreement, the Servicer shall not take any action, cause the REMIC to take any
action or fail to take (or fail to cause to be taken) any action that, under
the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of the REMIC as a REMIC or (ii) result in the imposition of
a tax upon the REMIC (including but not limited to the tax on "prohibited
transactions" as defined in Section 860F(a)(2) of the Code and the tax on
"contributions" to a REMIC set forth in Section 860G(d) of the Code) unless the
Servicer has received an Opinion of Counsel (at the expense of the party
seeking to take such action) to the effect that the contemplated action will
not endanger such REMIC status or result in the imposition of any such tax.
Without limitation of the foregoing, if a REMIC election is made with respect
to the arrangement under which any of the Mortgage Loans or REO Properties are
held, then, the Servicer shall not make any modification, waiver or amendment
of any term of any Mortgage Loan that would cause the REMIC or trust fund to
fail to qualify as a REMIC or result in the imposition of any tax under Section
860F(a) or Section 860G(d) of the Code.
Section 3.02 Liquidation of Mortgage Loans.
In the event that any payment due under any Mortgage Loan is
not paid when the same becomes due and payable, or in the event the Mortgagor
fails to perform any other covenant or obligation under the Mortgage Loan and
such failure continues beyond any applicable grace period, the Servicer shall
take such action as (1) the Servicer would take under similar circumstances
with respect to a similar mortgage loan held for its own account for
investment, (2) shall be consistent with Accepted Servicing Practices, (3) the
Servicer shall deem to be in the best interest of Owner, and (4) is consistent
with any related PMI Policy. In the event that any payment due under any
Mortgage Loan is not postponed pursuant to Section 3.01 and remains delinquent
for a period of 65 days or any other default continues for a period of 65 days
beyond the expiration of any grace or cure period, the Servicer shall commence
foreclosure proceedings. In such connection, the Servicer shall from its own
funds make all necessary and proper Servicing Advances, provided, however, that
the Servicer shall not be required to expend its own funds in connection with
any foreclosure or towards the restoration or preservation of any Mortgaged
Property, unless it shall determine (a) that such preservation, restoration
and/or foreclosure will increase the proceeds of liquidation of the Mortgage
Loan to Owner after reimbursement to itself for such expenses and (b) that such
expenses will be recoverable by it either through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
Custodial Account pursuant to Section 3.05) or through Insurance Proceeds
(respecting which it shall have similar priority).
In the event that any payment due under any Mortgage Loan is
not paid when the same becomes due and payable, or in the event the Mortgagor
fails to perform any other covenant or obligation under the Mortgage Loan and
such failure continues beyond any applicable grace period, the Servicer shall
take such action as it shall deem to be in the best interest of the Owner,
consistent with any related PMI Policy. With respect to any defaulted Mortgage
Loan, the Servicer shall have the right to review the status of the related
forbearance plan and, subject to the second paragraph of Section 3.01, may
modify such forbearance plan; including extending the Mortgage Loan repayment
date for a period of one year. In connection with a foreclosure or other
conversion, the Servicer shall exercise such rights and powers vested in it
hereunder and use the same degree of care and skill in its exercise as prudent
mortgage servicers would exercise or use under the circumstances in the conduct
to their own affairs, including, without limitation, advancing funds for the
payment of taxes and insurance premiums. During this period and in the
administration of such defaulted Mortgage Loans, the Servicer shall be
responsible for making all customary Servicing Advances.
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure,
in the event the Servicer has reasonable cause to believe that a Mortgaged
Property is contaminated by hazardous or toxic substances or wastes, or if the
Owner otherwise requests an environmental inspection or review of such
Mortgaged Property to be conducted by a qualified inspector, the Servicer shall
cause such inspection to occur. Inspections conducted upon the Owner's request
shall be at the Owner's expense. Upon completion of the inspection, the
Servicer shall promptly provide the Owner with a written report of the
environmental inspection.
After reviewing the environmental inspection report, the
Owner shall determine how the Servicer shall proceed with respect to the
Mortgaged Property. In the event (a) the environmental inspection report
indicates that the Mortgaged Property is contaminated by hazardous or toxic
substances or wastes and (b) the Owner directs the Servicer to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Servicer shall
be reimbursed for all reasonable costs associated with such foreclosure or
acceptance of a deed in lieu of foreclosure and any related environmental clean
up costs, as applicable, from the related Liquidation Proceeds, or if the
Liquidation Proceeds are insufficient to fully reimburse the Servicer, the
Servicer shall be entitled to be reimbursed from amounts in the Custodial
Account pursuant to Section 3.05 hereof. In the event the Owner directs the
Servicer not to proceed with foreclosure or acceptance of a deed in lieu of
foreclosure, the Servicer shall be reimbursed for all Servicing Advances made
with respect to the related Mortgaged Property from the Custodial Account
pursuant to Section 3.05 hereof.
Section 3.03 Collection of Mortgage Loan Payments.
Continuously from the Closing Date until the date each
Mortgage Loan ceases to be subject to this Agreement, the Servicer shall
proceed diligently to collect all payments due under each of the Mortgage Loans
when the same shall become due and payable and with respect to Escrow Mortgage
Loans only, shall take special care in ascertaining and estimating Escrow
Payments and all other charges that will become due and payable with respect to
the Mortgage Loans and each related Mortgaged Property, 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 3.04 Establishment of and Deposits to Custodial
Account.
The Servicer shall segregate and hold all funds collected and
received pursuant to the Mortgage Loans separate and apart from any of its own
funds and general assets and shall establish and maintain one or more Custodial
Accounts, in the form of time deposit or demand accounts, titled "[SERVICER] in
trust for Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings Inc., owner of
Fixed and Adjustable Rate Mortgage Loans, and various Mortgagors" (provided, in
the event that this Agreement is assigned to a third party, the Custodial
Account(s) shall be reestablished in trust for such Assignee). The Custodial
Account shall be established with a Qualified Depository acceptable to the
Owner. Any funds deposited in the Custodial Account shall at all times be fully
insured to the full extent permitted under applicable law. Funds deposited in
the Custodial Account may be drawn on by the Servicer in accordance with
Section 3.05. The creation of any Custodial Account shall be evidenced by a
letter agreement in the form of Exhibit C hereto. A copy of such letter
agreement shall be furnished to the Owner and, upon request, to any subsequent
owner of the Mortgage Loans.
The Servicer shall deposit in the Custodial Account within 48
hours of receipt, and retain therein, the following collections received by the
Servicer and payments made by the Servicer after the Closing Date:
(i) all payments on account of principal on the
Mortgage Loans, including all Principal Prepayments;
(ii) any amounts received from the Originator in
connection with the repurchase of any Mortgage Loan;
(iii) all payments on account of interest on the
Mortgage Loans adjusted to the Mortgage Loan Remittance Rate;
(iv) all Liquidation Proceeds;
(v) all Insurance Proceeds including amounts
required to be deposited pursuant to Section 3.12 (other than proceeds
to be held in the Escrow Account and applied to the restoration and
repair of the Mortgaged Property or released to the Mortgagor in
accordance with Section 3.17), Section 3.13 and Section 3.17;
(vi) all Condemnation Proceeds that are not applied
to the restoration or repair of the Mortgaged Property or released to
the Mortgagor;
(vii) any amount required to be deposited in the
Custodial Account pursuant to Sections 3.01, 3.10, 4.03, 5.01 or 5.02;
(viii) with respect to each Principal Prepayment in
full or in part, the Prepayment Interest Shortfall Amount, if any, for
the month of distribution. Such deposit shall be made from the
Servicer's own funds, without reimbursement therefor up to a maximum
amount per month of the Servicing Fee actually received for such month
for the Mortgage Loans;
(ix) any amounts required to be deposited by the
Servicer pursuant to Section 3.13 in connection with the deductible
clause in any blanket hazard insurance policy; and
(x) any amounts received with respect to or related
to any REO Property or REO Disposition Proceeds.
The foregoing requirements for deposit into the Custodial
Account shall be exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments in the nature of Servicing
Fees which are payable solely from the interest portion of Monthly Payments,
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or Ancillary
Income need not be deposited by the Servicer into the Custodial Account. Any
interest paid on funds deposited in the Custodial Account by the depository
institution shall accrue to the benefit of the Servicer and the Servicer shall
be entitled to retain and withdraw such interest from the Custodial Account
pursuant to Section 3.05. Additionally, any other benefit derived from the
Custodial Account associated with the receipt, disbursement and accumulation of
principal, interest, taxes, hazard insurance, mortgage blanket insurance, etc.
shall accrue to the Servicer.
Section 3.05 Permitted Withdrawals From Custodial
Account.
The Servicer shall, from time to time, withdraw funds from
the Custodial Account for the following purposes:
(i) to make payments to the Owner in the amounts and
in the manner provided for in Section 4.01;
(ii) to reimburse itself for Monthly Advances of the
Servicer's funds made pursuant to Section 4.03, the Servicer's right
to reimburse itself pursuant to this subclause (ii) being limited to
amounts received on the related Mortgage Loan which represent late
payments of principal and/or interest respecting which any such
advance was made, it being understood that, in the case of any such
reimbursement, the Servicer's right thereto shall be prior to the
rights of Owner;
(iii) to reimburse itself for unreimbursed Servicing
Advances, the Servicer's right to reimburse itself pursuant to this
subclause (iii) with respect to any Mortgage Loan (a) being limited to
related Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds and such other amounts as may be collected by the Servicer
from the Mortgagor or otherwise relating to the Mortgage Loan and (b)
if, after the liquidation of such Mortgage Loan, such payments are
insufficient to satisfy such unreimbursed Servicing Advances then the
Servicer may seek reimbursement from other amounts in the Custodial
Account, it being understood that, in the case of any such
reimbursement, the Servicer's right thereto shall be prior to the
rights of the Owner;
(iv) to pay itself interest on funds deposited in
the Custodial Account and to pay itself the Servicing Fee pursuant to
Section 5.01 hereof;
(v) to clear and terminate the Custodial Account
upon the termination of this Agreement;
(vi) to transfer funds to another Qualified
Depository in accordance with Section 3.10 hereof;
(vii) to pay any amount required to be paid pursuant
to Section 3.18 related to any REO Property, it being understood that
in the case of any such expenditure or withdrawal related to a
particular REO Property, the amount of such expenditure or withdrawal
from the Custodial Account shall be limited to amounts on deposit in
the Custodial Account with respect to the related REO Property;
(viii) to invest funds in certain Eligible
Investments in accordance with Section 3.10 hereof; and
(ix) to withdraw funds deposited in error.
In the event that the Custodial Account is interest
bearing, on each Remittance Date, the Servicer shall withdraw all
funds from the Custodial Account except for those amounts which,
pursuant to Section 4.01, the Servicer is not obligated to remit on
such Remittance Date. The Servicer may use such withdrawn funds only
for the purposes described in this Section 3.05.
Section 3.06 Establishment of and Deposits to Escrow
Account.
The Servicer shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan constituting Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts, in the form of time deposit or demand
accounts, titled, "Countrywide Home Loans, Inc. in trust for Xxxxxx Capital, A
Division of Xxxxxx Brothers Holdings Inc., owner of Fixed and Adjustable Rate
Mortgage Loans, and various Mortgagors" (provided, in the event that this
Agreement is assigned to a third party, the Escrow Account(s) shall be
reestablished in trust for such Assignee). The Escrow Accounts shall be
established with a Qualified Depository in a manner that shall provide maximum
available insurance thereunder. Funds deposited in the Escrow Account may be
drawn on by the Servicer in accordance with Section 3.07. The creation of any
Escrow Account shall be evidenced by a letter agreement in the form of Exhibit
D hereto. A copy of such letter agreement shall be furnished to the Owner and,
upon request, to any subsequent owner of the Mortgage Loans.
The Servicer shall deposit in the Escrow Account or Accounts
within 48 hours of receipt, 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 amounts representing Insurance Proceeds or
Condemnation Proceeds which are to be applied to the restoration or
repair of any Mortgaged Property.
The Servicer shall make withdrawals from the Escrow Account
only to effect such payments as are required under this Agreement, as set forth
in Section 3.07. The Servicer shall retain any interest paid on funds deposited
in the Escrow Account by the depository institution, other than interest on
escrowed funds required by law to be paid to the Mortgagor. To the extent
required by law, the Servicer shall pay interest on escrowed funds to the
Mortgagor notwithstanding that the Escrow Account may be non-interest bearing
or that interest paid thereon is insufficient for such purposes.
Section 3.07 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made
by the Servicer only:
(i) to effect timely payments of ground rents,
taxes, assessments, water rates, mortgage insurance premiums,
condominium charges, fire and hazard insurance premiums or other items
constituting Escrow Payments for the related Mortgage;
(ii) to reimburse the Servicer for any Servicing
Advance made by the Servicer with respect to a related Mortgage Loan,
but only from amounts received on the related Mortgage Loan which
represent late collections of Escrow Payments thereunder;
(iii) to refund to any Mortgagor any funds found to
be in excess of the amounts required under the terms of the related
Mortgage Loan;
(iv) for transfer to the Custodial Account and
application to reduce the principal balance of the Mortgage Loan in
accordance with the terms of the related Mortgage and Mortgage Note;
(v) for application to restoration or repair of the
Mortgaged Property in accordance with the procedures outlined in
Section 3.17;
(vi) to pay to the Servicer, or any Mortgagor to the
extent required by law, any interest paid on the funds deposited in
the Escrow Account;
(vii) to clear and terminate the Escrow Account on
the termination of this Agreement; and
(viii) to withdraw funds deposited in error.
Section 3.08 Notification of Adjustments.
With respect to each ARM Mortgage Loan, the Servicer shall
adjust the Mortgage Interest Rate on the related interest rate adjustment date
and shall adjust the Monthly Payment on the related mortgage payment adjustment
date, if applicable, in compliance with the requirements of applicable law and
the related Mortgage and Mortgage Note. The Servicer shall execute and deliver
any and all necessary notices required under applicable law and the terms of
the related Mortgage Note and Mortgage regarding the Mortgage Interest Rate and
Monthly Payment adjustments. The Servicer shall promptly, upon written request
therefor, deliver to the Owner, at the Owner's expense, such notifications and
any additional applicable data regarding such adjustments and the methods used
to calculate and implement such adjustments. Upon the discovery by the Servicer
or the receipt of notice from the Owner that the Servicer has failed to adjust
a Mortgage Interest Rate or Monthly Payment in accordance with the terms of the
related Mortgage Note, the Servicer shall immediately deposit in the Custodial
Account from its own funds the amount of any interest loss or deferral caused
the Owner thereby.
Section 3.09 Completion and Recordation of Assignment of
Mortgage.
To the extent permitted by applicable law, each of the
Assignments of Mortgage is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected at the Xxxxxx Capital's expense at the direction of the Owner.
The Owner or its designee shall cause the endorsements on the Mortgage Note,
the Assignment of Mortgage, and the assignment of security agreement to be
completed. Notwithstanding the transfer of rights pursuant to any Assignments
of Mortgage, Xxxxxx Capital shall remain liable for the expenses associated
with the preparation, endorsement and recordation with respect to the first set
of Assignments of Mortgages prepared and recorded after the Closing Date.
Section 3.10 Protection of Accounts.
The Servicer may transfer the Custodial Account or the Escrow
Account to a different Qualified Depository from time to time. Such transfer
shall be made only upon obtaining the consent of the Owner, which consent shall
not be withheld unreasonably, provided, however, if the Owner does not respond
within 30 days after receipt of request for consent, the Owner shall have been
deemed to consent to such transfer.
The Servicer shall bear any expenses, losses or damages
sustained by the Owner because the Custodial Account and/or the Escrow Account
are not demand deposit accounts.
Amounts on deposit in the Custodial Account may at the option
of the Servicer be invested in Eligible Investments; provided that in the event
that amounts on deposit in the Custodial Account or the Escrow Account exceed
the amount fully insured by the FDIC (the "Insured Amount") the Servicer shall
be obligated to invest the excess amount over the Insured Amount in Eligible
Investments on the same Business Day as such excess amount becomes present in
the Custodial Account or the Escrow Account. Any such Eligible Investment shall
mature no later than the Determination Date next following the date of such
Eligible Investment, provided, however, that if such Eligible Investment is an
obligation of a Qualified Depository that maintains the Custodial Account, then
such Eligible Investment may mature on such Remittance Date. Any such Eligible
Investment shall be made in the name of the Servicer in trust for the benefit
of the Owner. All income on or gain realized from any such Eligible Investment
shall be for the benefit of the Servicer and may be withdrawn at any time by
the Servicer. Any losses incurred in respect of any such investment shall be
deposited in the Custodial Account, by the Servicer out of its own funds
immediately as realized.
Section 3.11 Payment of Taxes, Insurance and Other
Charges.
With respect to each Mortgage Loan, the Servicer shall
maintain accurate records reflecting the status of ground rents, taxes,
assessments, water rates, sewer rents, and other charges which are or may
become a lien upon the Mortgaged Property and the status of PMI Policy premiums
and fire and hazard insurance coverage and shall obtain, from time to time, all
bills for the payment of such charges (including renewal premiums) and shall
effect payment thereof prior to the applicable penalty or termination date,
employing for such purpose deposits of the Mortgagor in the Escrow Account
which shall have been estimated and accumulated by the Servicer in amounts
sufficient for such purposes, as allowed under the terms of the Mortgage. The
Servicer assumes full responsibility for the timely payment of all such bills,
shall effect timely payment of all such charges irrespective of each
Mortgagor's faithful performance in the payment of same or the making of the
Escrow Payments, and shall make advances from its own funds to effect such
payments. With regard to Non-Escrow Mortgage Loans, the Servicer shall
determine consistent with Accepted Servicing Practices that any such payments
are made by the Mortgagor at the time they first became due and shall insure
that the Mortgaged Property is not lost to a tax lien as a result of nonpayment
and that such Mortgage is not left uninsured and shall make advances from its
own funds to effect any such delinquent payments to avoid the lapse of
insurance coverage on the Mortgaged Property or to avoid the imposition of a
tax lien.
Section 3.12 Maintenance of Hazard Insurance.
The Servicer shall cause to be maintained for each Mortgage
Loan hazard insurance such that all buildings upon the Mortgaged Property are
insured by a generally acceptable insurer rated B:III or better in the current
Best's Key Rating Guide ("Best's") against loss by fire, hazards of extended
coverage and such other hazards as are customary in the area where the
Mortgaged Property is located, in an amount which is at least equal to the
lesser of (i) 100% of the maximum insurable value of the improvements securing
such Mortgage Loan and (ii) the greater of (a) the outstanding principal
balance of the Mortgage Loan and (b) an amount such that the proceeds thereof
shall be sufficient to prevent the Mortgagor or the loss payee from becoming a
co-insurer.
If upon origination of the Mortgage Loan, the related
Mortgaged Property was located in an area identified in the Federal Register by
the Flood Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available) a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
is in effect with a generally acceptable insurance carrier rated B:III or
better in Best's in an amount representing coverage equal to the lesser of (i)
the minimum amount required, under the terms of coverage, to compensate for any
damage or loss on a replacement cost basis (or the unpaid balance of the
mortgage if replacement cost coverage is not available for the type of building
insured) and (ii) the maximum amount of insurance which is available under the
Flood Disaster Protection Act of 1973, as amended. If at any time during the
term of the Mortgage Loan, the Servicer determines in accordance with
applicable law and pursuant to the Xxxxxx Xxx Guides that a Mortgaged Property
is located in a special flood hazard area and is not covered by flood insurance
or is covered in an amount less than the amount required by the Flood Disaster
Protection Act of 1973, as amended, the Servicer shall notify the related
Mortgagor that the Mortgagor must obtain such flood insurance coverage, and if
said Mortgagor fails to obtain the required flood insurance coverage within
forty-five (45) days after such notification, the Servicer shall immediately
force place the required flood insurance on the Mortgagor's behalf.
If a Mortgage is secured by a unit in a condominium project,
the Servicer shall verify that the coverage required of the owner's
association, including hazard, flood, liability, and fidelity coverage, is
being maintained in accordance with then current Xxxxxx Mae requirements, and
secure from the owner's association its agreement to notify the Servicer
promptly of any change in the insurance coverage or of any condemnation or
casualty loss that may have a material effect on the value of the Mortgaged
Property as security.
The Servicer shall cause to be maintained on each Mortgaged
Property earthquake or such other or additional insurance as may be required
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance, or pursuant to the
requirements of any private mortgage guaranty insurer, or as may be required to
conform with Accepted Servicing Practices.
In the event that any Owner or the Servicer shall determine
that the Mortgaged Property should be insured against loss or damage by hazards
and risks not covered by the insurance required to be maintained by the
Mortgagor pursuant to the terms of the Mortgage, the Servicer shall, in
accordance with Accepted Servicing Practices, provide notice of such to the
Mortgagor.
All policies required hereunder shall name the Servicer as
loss payee and shall be endorsed with standard or union mortgagee clauses,
without contribution, which shall provide for at least 30 days prior written
notice of any cancellation, reduction in amount or material change in coverage.
The Servicer shall not interfere with the Mortgagor's freedom
of choice in selecting either his insurance carrier or agent, provided,
however, that the Servicer shall not accept any such insurance policies from
insurance companies unless such companies are rated B:III or better in Best's
and are licensed to do business in the jurisdiction in which the Mortgaged
Property is located. The Servicer shall determine that such policies provide
sufficient risk coverage and amounts, that they insure the property owner, and
that they properly describe the property address. The Servicer shall furnish to
the Mortgagor a formal notice of expiration of any such insurance in sufficient
time for the Mortgagor to arrange for renewal coverage by the expiration date.
Pursuant to Section 3.04, any amounts collected by the
Servicer under any such policies (other than amounts to be deposited in the
Escrow Account and applied to the restoration or repair of the related
Mortgaged Property, or property acquired in liquidation of the Mortgage Loan,
or to be released to the Mortgagor, in accordance with the Servicer's normal
servicing procedures as specified in Section 3.17) shall be deposited in the
Custodial Account subject to withdrawal pursuant to Section 3.05.
Section 3.13 Maintenance of Mortgage Blanket Insurance.
The Servicer shall obtain and maintain a blanket policy
insuring against losses arising from fire and hazards covered under extended
coverage on all of the Mortgage Loans. To the extent such policy provides
coverage in an amount equal to the amount required pursuant to Section 3.12 and
otherwise complies with all other requirements of Section 3.12, it shall
conclusively be deemed to have satisfied its obligations as set forth in
Section 3.12. Any amounts collected by the Servicer under any such policy
relating to a Mortgage Loan shall be deposited in the Custodial Account or
Escrow Account subject to withdrawal pursuant to Sections 3.05 or 3.16. Such
policy may contain a deductible clause, in which case, in the event that there
shall not have been maintained on the related Mortgaged Property a policy
complying with Section 3.12, and there shall have been a loss which would have
been covered by such policy, the Servicer shall deposit in the Custodial
Account at the time of such loss the amount not otherwise payable under the
blanket policy because of such deductible clause, such amount to deposited from
the Servicer's funds, without reimbursement therefor. Upon request of any
Owner, the Servicer shall cause to be delivered to such Owner a certified true
copy of such policy and a statement from the insurer thereunder that such
policy shall in no event be terminated or materially modified without 30 days'
prior written notice to such Owner.
Section 3.14 Maintenance of Fidelity Bond and Errors and
Omissions Insurance.
The Servicer shall maintain with responsible companies, at
its own expense, a blanket Fidelity Bond and an Errors and Omissions Insurance
Policy, with broad coverage on all officers, employees or other persons acting
in any capacity requiring such persons to handle funds, money, documents or
papers relating to the Mortgage Loans ("Servicer Employees"). Any such Fidelity
Bond and Errors and Omissions Insurance Policy shall be in the form of the
Mortgage Banker's Blanket Bond and shall protect and insure the Servicer
against losses, including forgery, theft, embezzlement, fraud, errors and
omissions and negligent acts of such Servicer Employees. Such Fidelity Bond and
Errors and Omissions Insurance Policy also shall protect and insure the
Servicer against losses in connection with the release or satisfaction of a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 3.14 requiring such Fidelity Bond
and Errors and Omissions Insurance Policy shall diminish or relieve the
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 Xxx in the Xxxxxx Mae
Guides and by Xxxxxxx Mac in the Xxxxxxx Xxx Xxxxxxx' & Servicers' Guide. Upon
the request of any Owner, the Servicer shall cause to be delivered to such
Owner a certified true copy of such fidelity bond and insurance policy and a
statement from the surety and the insurer that such fidelity bond and insurance
policy shall in no event be terminated or materially modified without 30 days'
prior written notice to the Owner.
Section 3.15 Inspections.
The Servicer shall inspect the Mortgaged Property as often as
deemed necessary by the Servicer to assure itself that the value of the
Mortgaged Property is being preserved. In addition, if any Mortgage Loan is
more than 90 days delinquent, the Servicer immediately shall inspect the
Mortgaged Property and shall conduct subsequent inspections in accordance with
Accepted Servicing Practices or as may be required by the primary mortgage
guaranty insurer. The Servicer shall keep an electronic report of each such
inspection.
Section 3.16 Restoration of Mortgaged Property.
The Servicer need not obtain the approval of the Owner prior
to releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor
to be applied to the restoration or repair of the Mortgaged Property if such
release is in accordance with Accepted Servicing Practices. At a minimum, with
respect to claims greater than $5000, the Servicer shall comply with the
following conditions in connection with any such release of Insurance Proceeds
or Condemnation Proceeds:
(i) the Servicer shall receive satisfactory
independent verification of completion of repairs and issuance of any
required approvals with respect thereto;
(ii) the Servicer shall take all steps necessary to
preserve the priority of the lien of the Mortgage, including, but not
limited to requiring waivers with respect to mechanics' and
materialmen's liens;
(iii) the Servicer shall verify that the Mortgage
Loan is not 60 or more days delinquent; and
(iv) pending repairs or restoration, the Servicer
shall place the Insurance Proceeds or Condemnation Proceeds in the
Escrow Account.
With respect to claims of $5000 or less, the Servicer shall
comply with the following conditions in connection with any such release of
Insurance Proceeds or Condemnation Proceeds:
(i) the related Mortgagor shall provide an affidavit
verifying the completion of repairs and issuance of any required
approvals with respect thereto;
(ii) the Servicer shall verify the total amount of
the claim with the applicable insurance company; and
(iii) pending repairs or restoration, the Servicer
shall place the Insurance Proceeds or Condemnation Proceeds in the
Escrow Account.
If the Owner is named as an additional loss payee, the
Servicer is hereby empowered to endorse any loss draft issued in respect of
such a claim in the name of the Owner.
Section 3.17 Maintenance of PMI Policy; Claims.
With respect to each Mortgage Loan that is covered by a PMI
Policy, identified on the Mortgage Loan Schedule (or otherwise identified in
writing to the Servicer), that is in effect as of the date of this Agreement
and which Mortgage Loan has an LTV in excess of 80%, the Servicer shall
maintain or cause the Mortgagor to maintain in full force and effect a PMI
Policy insuring that portion of the Mortgage Loan in excess of 75% of value,
and shall pay or shall cause the Mortgagor to pay the premium thereon on a
timely basis, until the LTV of such Mortgage Loan is reduced to 80%. In the
event that such PMI Policy shall be terminated, the Servicer shall obtain from
another Qualified Insurer a comparable replacement policy, with a total
coverage equal to the remaining coverage of such terminated PMI Policy, at
substantially the same fee level. If the insurer shall cease to be a Qualified
Insurer, the Servicer shall determine whether recoveries under the PMI Policy
are jeopardized for reasons related to the financial condition of such insurer,
it being understood that the Servicer shall in no event have any responsibility
or liability for any failure to recover under the PMI Policy for such reason.
If the Servicer determines that recoveries are so jeopardized, it shall notify
the Owner and the Mortgagor, if required, and obtain from another Qualified
Insurer a replacement insurance policy. The Servicer shall not take any action
which would result in noncoverage under any applicable PMI Policy of any loss
which, but for the actions of the Servicer would have been covered thereunder.
In connection with any assumption or substitution agreement entered into or to
be entered into pursuant to Section 5.02, the Servicer shall promptly notify
the insurer under the related PMI Policy, if any, of such assumption or
substitution of liability in accordance with the terms of such PMI Policy and
shall take all actions which may be required by such insurer as a condition to
the continuation of coverage under such PMI Policy. If such PMI Policy is
terminated as a result of such assumption or substitution of liability, the
Servicer shall obtain a replacement PMI Policy as provided above.
In connection with its activities as servicer, the Servicer
agrees to prepare and present, on behalf of itself and the Owner, claims to the
insurer under any PMI Policy in a timely fashion in accordance with the terms
of such PMI Policy and, in this regard, to take such action as shall be
necessary to permit recovery under any PMI Policy respecting a defaulted
Mortgage Loan. Pursuant to Section 3.04, any amounts collected by the Servicer
under any PMI Policy shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 3.05.
Section 3.18 Title, Management and Disposition of REO
Property.
In the event that title to any 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 the Servicer, or in the event the Servicer
is not authorized or permitted to hold title to real property in the state
where the REO Property is located, or would be adversely affected under the
"doing business" or tax laws of such state by so holding title, the deed or
certificate of sale shall be taken in the name of such Person or Persons as
shall be consistent with an Opinion of Counsel obtained by the Servicer from
any attorney duly licensed to practice law in the state where the REO Property
is located. The Person or Persons holding such title other than the Owner shall
acknowledge in writing that such title is being held as nominee for the Owner.
The Servicer shall manage, conserve, protect and operate each
REO Property for the Owner solely for the purpose of its prompt disposition and
sale. The Servicer, either itself or through an agent selected by the Servicer,
shall manage, conserve, protect and operate the REO Property 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. The Servicer shall attempt to sell the
same (and may temporarily rent the same for a period not greater than one year,
except as otherwise provided below) on such terms and conditions as the
Servicer deems to be in the best interest of the Owner.
The Servicer shall use its Best Efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within three years after title has been taken to such REO Property, unless (i)
a REMIC election has not been made with respect to the arrangement under which
the Mortgage Loans and the REO Property are held, and (ii) the Servicer
determines, and gives an appropriate notice to the Owner to such effect, that a
longer period is necessary for the orderly liquidation of such REO Property. If
a period longer than one and a half years is permitted under the foregoing
sentence and is necessary to sell any REO Property, (i) the Servicer shall
report monthly to the Owner as to the progress being made in selling such REO
Property and (ii) if, with the written consent of the Owner, a purchase money
mortgage is taken in connection with such sale, such purchase money mortgage
shall name the Servicer as mortgagee, and such purchase money mortgage shall
not be held pursuant to this Agreement, but instead a separate participation
agreement among the Servicer and Owner shall be entered into with respect to
such purchase money mortgage.
The Servicer shall also maintain on each REO Property fire
and hazard insurance with extended coverage in an amount which is at least
equal to the lesser of (a) 100% of the maximum insurable value of the
improvements which are a part of such property, or (b) unpaid principal balance
of the related Mortgage Loan at the time it becomes an REO Property, liability
insurance and, to the extent required and available under the Flood Disaster
Protection Act of 1973, as amended, flood insurance in the amount required
above.
Subject to the approval of the Owner as described in this
paragraph, the disposition of REO Property shall be carried out by the Servicer
at such price, and upon such terms and conditions, as the Servicer deems to be
in the best interests of the Owner. Prior to acceptance by the Servicer of an
offer to sell any REO Property of which Xxxxxx Capital is the Owner for a sale
price that is less than 90% of the unpaid principal balance of the related
Mortgage Loan, the Servicer shall notify Xxxxxx Capital of such offer in
writing which notification shall set forth all material terms of said offer
(each a "Notice of Sale"). Xxxxxx Capital shall be deemed to have approved the
sale of any REO Property unless Xxxxxx Capital notifies the Servicer in
writing, within five (5) days after its receipt of the related Notice of Sale,
that it disapproves of the related sale, in which case the Servicer shall not
proceed with such sale. The proceeds of sale of the REO Property shall be
promptly deposited in the Custodial Account. As soon as practical thereafter
the expenses of such sale shall be paid and the Servicer shall reimburse itself
for any related unreimbursed Servicing Advances, unpaid Servicing Fees and
unreimbursed Monthly Advances made in accordance with Section 4.03, and on the
Remittance Date immediately following the Principal Prepayment Period in which
such sale proceeds are received the net cash proceeds of such sale remaining in
the Custodial Account shall be distributed to the Owner.
The Servicer shall advance funds necessary for the proper
operation, management and maintenance of the REO Property, including the cost
of maintaining any hazard insurance pursuant to Section 3.12 and the fees of
any managing agent of the Servicer, or the Servicer itself, which advances
shall be deemed "Servicing Advances" for the purposes hereunder. The REO
management fee shall be an amount that is reasonable and customary in the area
where the Mortgaged Property is located. The Servicer shall make monthly
distributions on each Remittance Date to the Owners of the net cash flow from
the REO Property (which shall equal the revenues from such REO Property net of
the expenses described in this Section 3.18 and of any reserves reasonably
required from time to time to be maintained to satisfy anticipated liabilities
for such expenses).
Notwithstanding the foregoing, at any time and from time to
time, the Owner may at its election terminate this Agreement with respect to
one or more REO Properties as provided by Section 9.02.
Section 3.19 Real Estate Owned Reports.
Together with the statement furnished pursuant to Section
4.02, the Servicer shall furnish to the Owner upon request an electronic
statement with respect to any REO Property covering the operation of such REO
Property for the previous month and the Servicer's efforts in connection with
the sale of such REO Property and any rental of such REO Property incidental to
the sale thereof for the previous month. That statement shall be accompanied by
such other information as the Owner shall reasonably request.
Section 3.20 Liquidation Reports.
Upon the foreclosure sale of any Mortgaged Property or the
acquisition thereof by the Owner pursuant to a deed in lieu of foreclosure, the
Servicer shall submit to the Owner a liquidation report with respect to such
Mortgaged Property.
Section 3.21 Reports of Foreclosures and Abandonments of
Mortgaged Property.
Following the foreclosure sale or abandonment of any
Mortgaged Property, the Servicer shall report such foreclosure or abandonment
as required pursuant to Section 6050J of the Internal Revenue Code of 1986, as
it may be amended from time to time, or any successor statute thereto, and
applicable U.S. Department of the Treasury regulations issued pursuant thereto.
Section 3.22 PMI Obligations.
The Servicer shall comply with all provisions of applicable
state and federal law relating to the cancellation of, or collection of
premiums with respect to, PMI Policies, including, but not limited to, the
provisions of the Homeowners Protection Act of 1998, and all regulations
promulgated thereunder, as amended from time to time. If the Mortgagor fails to
pay any PMI Policy premium, the Servicer shall be obligated to make such
premium payments.
ARTICLE IV
PAYMENTS TO OWNER
Section 4.01 Remittances.
On each Remittance Date the Servicer shall remit by wire
transfer of immediately available funds to the Owner (a) all amounts deposited
in the Custodial Account as of the close of business on the Determination Date
(net of charges against or withdrawals from the Custodial Account pursuant to
Section 3.05), plus (b) all amounts, if any, which the Servicer is obligated to
distribute pursuant to Section 4.03, minus (c) any amounts attributable to
Principal Prepayments received after the applicable Principal Prepayment Period
which amounts shall be remitted on the following Remittance Date, together with
any additional interest required to be deposited in the Custodial Account in
connection with such Principal Prepayment in accordance with Section
3.04(viii), and minus (d) any amounts attributable to Monthly Payments
collected but due on a Due Date or Dates subsequent to the first day of the
month of the Remittance Date, which amounts shall be remitted on the Remittance
Date next succeeding the Due Period for such amounts.
With respect to any remittance received by the Owner after
the second Business Day following the Business Day on which such payment was
due, the Servicer shall pay to the Owner interest on any such late payment at
an annual rate equal to the Prime Rate, adjusted as of the date of each change,
plus three percentage points, but in no event greater than the maximum amount
permitted by applicable law. Such interest shall be deposited in the Custodial
Account by the Servicer 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 the distribution payable on the next
succeeding Remittance Date. The payment by the Servicer of any such interest
shall not be deemed an extension of time for payment or a waiver of any Event
of Default by the Servicer.
Section 4.02 Statements to Owner.
(a) Not later than the tenth calendar day of each month, the
Servicer shall furnish to the Owner a monthly statement (a "Monthly Remittance
Advice") containing such information in the form required by the Owner, or its
designee, in hard copy or electronic medium mutually acceptable to the parties
as to the accompanying remittance and the period ending on the preceding
Determination Date.
(b) In addition, such Monthly Remittance Advice shall track,
on a monthly basis, the Mortgage Interest Rate and the delinquency status of
the Mortgage Loans. A cumulative delinquency report shall be provided to the
Owner upon the Owner's request.
(c) Not more than 60 days after the end of each calendar
year, commencing December 31, 2001, the Servicer shall furnish to each Person
who was an Owner of the Mortgage Loans at any time during such calendar year an
annual statement in accordance with the requirements of applicable federal
income tax law as to the aggregate of remittances for the applicable portion of
such year. Such obligation of the Servicer shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Servicer pursuant to any requirements of the Internal Revenue
Code as from time to time are in force.
Beginning with calendar year 2001, the Servicer shall prepare
and file any and all tax returns, information statements or other filings for
the tax year 2001 and subsequent tax years required to be delivered to any
governmental taxing authority or to the Owner pursuant to any applicable law
with respect to the Mortgage Loans and the transactions contemplated hereby. In
addition, the Servicer shall provide the Owner with such information concerning
the Mortgage Loans as is necessary for the Owner to prepare its federal income
tax return as the Owner may reasonably request from time to time.
Section 4.03 Monthly Advances by Servicer.
On the Business Day immediately preceding each Remittance
Date, the Servicer shall deposit in the Custodial Account from its own funds an
amount equal to all Monthly Payments (with interest adjusted to the Mortgage
Loan Remittance Rate) which were due on the Mortgage Loans during the
applicable Due Period and which were delinquent at the close of business on the
immediately preceding Determination Date or which were deferred pursuant to
Section 3.01. The Servicer's obligation to make such Monthly Advances as to any
Mortgage Loan will continue through the last Monthly Payment due prior to the
payment in full of the Mortgage Loan, or through the last Remittance Date prior
to the Remittance Date for the distribution of all Liquidation Proceeds and
other payments or recoveries (including Insurance Proceeds and Condemnation
Proceeds) with respect to the Mortgage Loan unless the Servicer deems such
Monthly Advances to be unrecoverable, as evidenced by an Officer's Certificate
of the Servicer delivered to the Owner. With respect to any Mortgage Loan that
has not at any time been subject to a Reconstitution Agreement and is owned by
Xxxxxx Capital as of the date of liquidation thereof, Xxxxxx Capital shall
reimburse the Servicer for any Monthly Advances that remain unreimbursed to the
Servicer after giving effect to the final liquidation of such Mortgage Loan and
any permissible reimbursement to the Servicer under Section 3.05. Any such
reimbursement shall be made by Xxxxxx Capital to the Servicer within thirty
(30) days of Xxxxxx Capital's receipt of a detailed invoice therefor. In no
event shall the Servicer be entitled to withdrawe any such reimbursement from
funds in the Custodial Account.
ARTICLE V
GENERAL SERVICING PROCEDURES
Section 5.01 Servicing Compensation.
As compensation for its services hereunder, the Servicer
shall be entitled to withdraw from the Custodial Account or to retain from
interest payments on the Mortgage Loans the amount of its Servicing Fee. The
Servicing Fee shall be payable monthly and shall be computed on the basis of
the same unpaid principal balance and for the period respecting which any
related interest payment on a Mortgage Loan is computed. The Servicing Fee
shall be payable only at the time of and with respect to those Mortgage Loans
for which payment is in fact made of the entire amount of the related interest
payment. The obligation of the Owner to pay the Servicing Fee is limited to,
and payable solely from, the interest portion of such payments collected by the
Servicer.
Additional servicing compensation in the form of Ancillary
Income shall be retained by the Servicer to the extent not required to be
deposited in the Custodial Account. The Servicer shall be entitled to retain
late charges whether or not deposited to the Custodial Account. The 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
thereof except as specifically provided for herein.
Section 5.02 Transfers of Mortgaged Property.
The Servicer shall use its best efforts to enforce any
"due-on-sale" provision contained in any Mortgage or Mortgage Note and to deny
assumption by the person to whom the Mortgaged Property has been or is about to
be sold whether by absolute conveyance or by contract of sale, and whether or
not the Mortgagor remains liable on the Mortgage and the Mortgage Note;
provided that, if in the Servicer's prudent business judgment, it determines
that an assumption of the Mortgage Loan is in the best interests of the Owner,
it shall deliver notice of such determination to the Owner and may permit such
assumption if approved by the Owner. When the Mortgaged Property has been
conveyed by the Mortgagor, the Servicer shall, to the extent it has knowledge
of such conveyance or the Owner's consent otherwise in accordance with the
preceding sentence, exercise its rights to accelerate the maturity of such
Mortgage Loan under the "due-on-sale" clause applicable thereto, provided,
however, that the Servicer shall not be required to take such action if the
Servicer, in its prudent business judgment, believes it is not in the best
interests of the Owner and shall not exercise such rights if prohibited by law
from doing so or if the exercise of such rights would impair or threaten to
impair any recovery under the related PMI Policy, if any.
If the Servicer reasonably believes it is unable under
applicable law to enforce such "due-on-sale" clause or if the Owner approves
such assumption pursuant to the preceding paragraph, the Servicer shall enter
into (i) an assumption and modification agreement with the person to whom such
property has been conveyed, pursuant to which such person becomes liable under
the Mortgage Note and the original Mortgagor remains liable thereon or (ii) in
the event the Servicer is unable under applicable law to require that the
original Mortgagor remain liable under the Mortgage Note and the Servicer has
the prior consent of the primary mortgage guaranty insurer, a substitution of
liability agreement with the Owner of the Mortgaged Property pursuant to which
the original Mortgagor is released from liability and the Owner of the
Mortgaged Property is substituted as Mortgagor and becomes liable under the
Mortgage Note; provided that no such substitutions should be permitted unless
such person satisfies the underwriting criteria of the Servicer and has a
credit risk rating at least equal to that of the original Mortgagor. The
Mortgage Loan, as assumed, shall conform in all respects to the requirements,
representations and warranties of this Agreement. The Servicer shall notify the
Owner that any such assumption or substitution agreement has been contemplated
by forwarding to the Owner the original copy of such assumption or substitution
agreement (indicating the Mortgage File to which it relates) which copy shall
be added by the Owner to the related Mortgage File and which shall, for all
purposes, be considered part of such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof. The Servicer shall
be responsible for recording any such assumption or substitution agreements. In
connection with any such assumption or substitution agreement, the Monthly
Payment on the related Mortgage Loan shall not be changed but shall remain as
in effect immediately prior to the assumption or substitution, the Mortgage
Interest Rate, the stated maturity or the outstanding principal amount of such
Mortgage Loan shall not be changed nor shall any required monthly payments of
principal or interest be deferred or forgiven. Any assumption fee collected by
the Servicer for entering into an assumption agreement shall be retained by the
Servicer as additional servicing compensation. In connection with any such
assumption, neither the Mortgage Interest Rate borne by the related Mortgage
Note, the term of the Mortgage Loan nor the outstanding principal amount of the
Mortgage Loan shall be changed.
Section 5.03 Right to Examine Servicer Records.
The Owner shall have the right to examine and audit any and
all of the books, records, or other information of the Servicer, whether held
by the Servicer or by another on its behalf, with respect to or concerning this
Agreement or the Mortgage Loans, during business hours or at such other times
as may be reasonable under applicable circumstances, upon reasonable advance
notice.
Section 5.04 Servicing Tape.
Not later than the tenth calendar day of each month, the
Servicer shall deliver or cause to be delivered to the Owner and the Owner's
designee, a file in an electronic reporting format as shall be mutually agreed
on by the Owner and Servicer, containing servicing information, including
without limitation, those fields specified by the Owner from time to time and
reasonably available to the Servicer, on a loan-by-loan basis and in the
aggregate, with respect to the Mortgage Loans serviced hereunder.
Section 5.05 Satisfaction of Mortgages and Release of
Mortgage Files.
Upon the payment in full of any Mortgage Loan the Servicer
shall notify the Owner in the Monthly Remittance Advice as provided in Section
4.02, and may request the release of any Mortgage Loan documents. Upon receipt
of such request, the Custodian shall, within five (5) Business Days, release
the related Mortgage File to the Servicer; provided, that the Servicer shall
use its best efforts to obtain the release of the related Mortgage File from
the Custodian. Pursuant to the Assignment and Assumption Agreement to be
executed by the parties in accordance with Section 10.03, the Owner shall
assign to the Servicer all rights against the Custodian that the Owner may have
(in its capacity as servicer) arising out of a breach by the Custodian of its
obligations under the Custodial Agreement with respect to the Mortgage Loans.
If the Servicer satisfies or releases a Mortgage without
first having obtained payment in full of the indebtedness secured by the
Mortgage or should the Servicer otherwise prejudice any rights the Owner may
have under the mortgage instruments, upon written demand of the Owner, the
Servicer shall repurchase the related Mortgage Loan at the Repurchase Price by
deposit thereof in the Custodial Account within 2 Business Days of receipt of
such demand by the Owner. The Servicer shall maintain the Fidelity Bond and
Errors and Omissions Insurance Policy as provided for in Section 3.14 insuring
the Servicer against any loss it may sustain with respect to any Mortgage Loan
not satisfied in accordance with the procedures set forth herein.
Section 5.06 Annual Statement as to Compliance.
On or before July 31st of each year, beginning with July 31,
2001, the Servicer, at its own expense, will deliver to Xxxxxx Capital and the
Owner a Servicing Officer's certificate stating, as to each signer thereof,
that (i) a review of the activities of the Servicer during such preceding
fiscal year and of performance under this Agreement has been made under such
officers' supervision, and (ii) to the best of such officers' knowledge, based
on such review, the Servicer has fulfilled all its obligations under this
Agreement for such year, or, if there has been a default in the fulfillment of
all such obligations, specifying each such default known to such officer and
the nature and status thereof including the steps being taken by the Servicer
to remedy such default.
Section 5.07 Annual Independent Public Accountants'
Servicing Report.
On or before July 31 of each year, beginning with July 31,
2001, the Servicer shall, at its own expense, cause a firm of independent
public accountants (who may also render other services to the Servicer), which
is a member of the American Institute of Certified Public Accountants, to
furnish to Xxxxxx Capital and the Owner (i) year-end audited financial
statements of the Servicer and (ii) a statement to the effect that such firm
has examined certain documents and records for the preceding fiscal year (or
during the period from the date of commencement of such Servicer's duties
hereunder until the end of such preceding fiscal year in the case of the first
such certificate) and that, on the basis of such examination conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers, such firm is of the opinion that Servicer's overall servicing
operations have been conducted in compliance with the Uniform Single
Attestation Program for Mortgage Bankers except for such exceptions that, in
the opinion of such firm, the Uniform Single Attestation Program for Mortgage
Bankers requires it to report, in which case such exceptions shall be set forth
in such statement.
ARTICLE VI
REPRESENTATIONS, WARRANTIES
AND AGREEMENTS
Section 6.01 Representations, Warranties and Agreements
of the Servicer.
The Servicer, as a condition to the consummation of the
transactions contemplated hereby, hereby makes the following representations
and warranties to the Owner as of the Closing Date:
(a) Due Organization and Authority. The Servicer is a New
York corporation duly organized, validly existing and in good standing under
the laws of the state of its incorporation and has all licenses necessary to
carry on its business as now being conducted and is licensed, qualified and in
good standing in each state where a Mortgaged Property is located if the laws
of such state require licensing or qualification in order to conduct business
of the type conducted by the Servicer, and in any event the Servicer is in
compliance with the laws of any such state to the extent necessary to ensure
the enforceability of the terms of this Agreement; the Servicer has the full
corporate power and authority to execute and deliver this Agreement and to
perform in accordance herewith; the execution, delivery and performance of this
Agreement (including all instruments of transfer to be delivered pursuant to
this Agreement) by the Servicer and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation of the Servicer and all
requisite corporate action has been taken by the Servicer to make this
Agreement valid and binding upon the Servicer in accordance with its terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Servicer;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition of the servicing responsibilities by the Servicer or
the transactions contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions of this Agreement, will conflict with or result in a
breach of any of the terms, conditions or provisions of the Servicer's charter
or by-laws or any legal restriction or any agreement or instrument to which the
Servicer is now a party or by which it is bound, or constitute a 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 the
Servicer or its property is subject, or impair the ability of the Servicer to
service the Mortgage Loans, or impair the value of the Mortgage Loans;
(d) Ability to Perform. The Servicer does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. The Servicer is solvent;
(e) No Litigation Pending. There is no action, suit,
proceeding or investigation pending or, to the Servicer's knowledge, threatened
against the Servicer which, either in any one instance or in the aggregate, may
result in any material adverse change in the business, operations, financial
condition, properties or assets of the Servicer, or in any material impairment
of the right or ability of the Servicer to carry on its business substantially
as now conducted, or in any material liability on the part of the Servicer, or
which would draw into question the validity of this Agreement or of any action
taken or to be taken in connection with the obligations of the Servicer
contemplated herein, or which would be likely to impair materially the ability
of the Servicer to perform under the terms of this Agreement;
(f) No Consent Required. No consent, approval, authorization
or order of any court or governmental agency or body is required for the
execution, delivery and performance by the Servicer of or compliance by the
Servicer with this Agreement, or if required, such approval has been obtained
prior to the Closing Date;
(g) Ability to Service. The Servicer is an approved servicer
of conventional residential mortgage loans for Xxxxxx Xxx and Xxxxxxx Mac, with
the facilities, procedures, and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage Loans. The
Servicer is in good standing to service mortgage loans for both Xxxxxx Mae and
Xxxxxxx Mac, and no event has occurred, including but not limited to a change
in insurance coverage, which would make the Servicer unable to comply with both
Xxxxxx Mae and Xxxxxxx Mac eligibility requirements or which would require
notification to Xxxxxx Mae or Xxxxxxx Mac;
(h) Accuracy of Statements. The information contained in the
Mortgage Loan Schedule and all information provided regarding delinquencies in
the Mortgage Loans are true and correct in all material respects. Neither the
Mortgage Loan Schedule nor the mortgage file nor any other document furnished
by the Servicer in connection with this transaction contains any untrue
statement of fact by the Servicer of its affiliates, or omits to state a fact,
necessary to make the statements of the Servicer or its affiliates contained
therein not materially misleading;
(i) No Commissions to Third Parties. The Servicer has not
dealt with any broker or agent or anyone else who might be entitled to a fee or
commission in connection with this transaction other than the Owner.
Section 6.02 Remedies for Breach of Representations and
Warranties of the Servicer.
It is understood and agreed that the representations and
warranties set forth in Section 6.01 shall survive the engagement of the
Servicer to perform the servicing responsibilities as of the Closing Date and
the delivery of the Servicing Files to the Servicer and shall inure to the
benefit of the Owner. Upon discovery by either the Servicer or the Owner of a
breach of any of the foregoing representations and warranties which materially
and adversely affects the ability of the Servicer 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 or the interest of the Owner (in
the case of any of the foregoing, a "Breach"), the party discovering such
Breach shall give prompt written notice to the other.
Within 60 days of the earlier of either discovery by or
notice to the Servicer of any Breach of a representation or warranty set forth
in Section 6.01 which materially and adversely affects the ability of the
Servicer 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 Servicer shall use its Best Efforts promptly to cure such Breach
in all material respects and, if such Breach cannot be cured, the Servicer
shall, at the Owner's option, assign the Servicer's rights and obligations
under this Agreement (or respecting the affected Mortgage Loans) to a successor
servicer, subject to the approval of the Owner, which approval shall be in the
Owner's sole discretion. Such assignment shall be made in accordance with
Section 10.01.
In addition, the Servicer shall indemnify the Owner and hold
it harmless against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary 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 the Servicer
representations and warranties contained in this Agreement.
Any cause of action against the Servicer relating to or
arising out of the Breach of any representations and warranties made in Section
6.01 shall accrue upon (i) discovery of such Breach by the Servicer or notice
thereof by the Owner to the Servicer, (ii) failure by the Servicer to cure such
Breach within the applicable cure period, and (iii) demand upon the Servicer by
the Owner for compliance with this Agreement.
Section 6.03 Representations and Warranties of the Owner.
The Owner, as a condition to the consummation of the
transactions contemplated hereby, makes the following representations and
warranties to the Servicer as of the Closing Date:
(a) Due Organization and Authority. The Owner is a Delaware
corporation duly organized, validly existing and in good standing under the
laws of the state of its incorporation and has all licenses necessary to carry
on its business as now being conducted; the Owner has the full corporate power
and authority to execute and deliver this Agreement and to perform in
accordance herewith; the execution, delivery and performance of this Agreement
(including all instruments of transfer to be delivered pursuant to this
Agreement) by the Owner and the consummation of the transactions contemplated
hereby have been duly and validly authorized; this Agreement evidences the
valid, binding and enforceable obligation of the Owner; and all requisite
corporate action has been taken by the Owner to make this Agreement valid and
binding upon the Owner in accordance with its terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Owner;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the conveyance of the servicing responsibilities to the Servicer or
the transactions contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions of this Agreement, will conflict with or result in a
Breach of any of the terms, conditions or provisions of the Owner's charter or
by-laws or any legal restriction or any agreement or instrument to which the
Owner is now a party or by which it is bound, or constitute a 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 the Owner or its
property is subject, or impair the value of the servicing contract consummated
hereby;
(d) Ability to Perform. The Owner does not believe, nor does
it have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement;
(e) No Litigation Pending. There is no action, suit,
proceeding or investigation pending or threatened against the Owner which,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties or
assets of the Owner, or in any material impairment of the right or ability of
the Owner to carry on its business substantially as now conducted, or in any
material liability on the part of the Owner, or which would draw into question
the validity of this Agreement or of any action taken or to be taken in
connection with the obligations of the Owner contemplated herein, or which
would be likely to impair materially the ability of the Owner to perform under
the terms of this Agreement;
(f) No Consent Required. No consent, approval, authorization
or order of any court or governmental agency or body is required for the
execution, delivery and performance by the Owner of or compliance by the Owner
with this Agreement, or if required, such approval has been obtained prior to
the Closing Date;
(g) Ownership. The Owner is the sole owner and holder of the
Mortgage Loans. The servicing responsibilities contracted for as of the Closing
Date have not been assigned or pledged, and the Owner has good and marketable
interest therein, has full right to transfer the servicing responsibilities to
the Servicer free and clear of any encumbrance, equity, interest, lien, pledge,
charge, claim or security interest, and has full right and authority, subject
to no interest of, or agreement with, any other party (other than any notice
required by law, regulation or otherwise, to be delivered to the Mortgagors) to
assign the servicing responsibilities pursuant to this Agreement; and
(h) No Commissions to Third Parties. The Owner has not dealt
with any broker or agent or anyone else who might be entitled to a fee or
commission in connection with this transaction other than the Servicer.
Section 6.04 Remedies for Breach of Representations and
Warranties of the Owner.
It is understood and agreed that the representations and
warranties set forth in Section 6.03 shall survive the engagement of the
Servicer to perform the servicing responsibilities as of the Closing Dates and
the delivery of the Servicing Files to the Servicer and shall inure to the
benefit of the Servicer. Upon discovery by either the Servicer or the Owner of
a Breach of any of the foregoing representations and warranties which
materially and adversely affects the value of the servicing contract
established herein or the interest of the Servicer, the party discovering such
Breach shall give prompt written notice to the other.
Within 60 days of the earlier of either discovery by or
notice to the Owner of any Breach of a representation or warranty set forth in
Section 6.03 which materially and adversely affects the value of the servicing
contract, the Owner shall use its Best Efforts promptly to cure such Breach in
all material respects.
The Owner shall indemnify the Servicer and hold it harmless
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and other costs and
expenses, including, without limitation, any reasonable legal fees and related
expenses incurred by the Owner in connection with enforcing this indemnity,
resulting from any claim, demand, defense or assertion based on or grounded
upon, or resulting from, a Breach of the Owner representations and warranties
contained in this Agreement. It is understood and agreed that the obligation of
the Owner to indemnify the Servicer pursuant to this Section 6.04 constitutes
the sole remedy of the Servicer respecting a Breach of the foregoing
representation and warranties.
Any cause of action against the Owner relating to or arising
out of the Breach of any representations and warranties made in Section 6.03
shall accrue upon (i) discovery of such Breach by the Owner or notice thereof
by the Servicer to the Owner, (ii) failure by the Owner to cure such Breach
within the applicable cure period, and (iii) demand upon the Owner by the
Servicer for compliance with this Agreement.
ARTICLE VII
AGENCY TRANSFER; WHOLE LOAN TRANSFER; PASS-THROUGH TRANSFER
Section 7.01 Removal of Mortgage Loans from Inclusion Under
this Agreement Upon an Agency Transfer; a Pass-Through Transfer or a Whole Loan
Transfer on One or More Reconstitution Dates.
(a) The Owner and the Servicer agree that with respect to
some or all of the Mortgage Loans, from time to time the Owner shall:
1. effect an Agency Transfer, and/or
2. effect a Whole Loan Transfer, and/or
3. effect a Pass-Through Transfer,
in each case retaining the Servicer as the servicer thereof,
or as applicable the "seller/servicer". On the related Reconstitution Date, the
Mortgage Loans transferred shall cease to be covered by this Agreement.
(b) With respect to each Agency Transfer, Whole Loan Transfer
or Pass-Through Transfer, as the case may be, entered into by the Owner, the
Servicer agrees to cooperate fully with the Owner, the Owner's designee, any
prospective purchaser, or any rating agency with respect to all reasonable
requests and due diligence procedures and to use its Best Efforts to facilitate
such Agency Transfer, Whole Loan Transfer or Pass-Through Transfer, as the case
may be.
(c) The Servicer acknowledges that with respect to some or
all of the Mortgage Loans, the Owner intends to effect one or more Agency
Transfers, Whole Loan Transfers and/or one or more Pass-Through Transfers. With
respect to each Agency Transfer, Whole Loan Transfer or Pass-Through Transfer,
as the case may be, entered into by the Owner, the Servicer agrees:
(i) to negotiate and to execute all agreements
executed in connection with such Agency Transfer, Whole Loan Transfer
or Pass-Through Transfer that govern the servicing and administration
of the Mortgage Loans (and any agreements and other documents
incidental thereto) as the Owner shall reasonably request, provided
that, in the case of a Whole Loan Transfer or Pass-Through Transfer,
the servicing provisions contained therein shall be substantially
similar to those contained in this Agreement and shall not contain any
obligations materially more onerous than those contained herein that
increase the expenses or obligations of the Servicer, unless otherwise
mutually agreed by the parties (provided, that each of the Servicer
and the Owner is given an opportunity to review and reasonably
negotiate in good faith the content of such documents not specifically
referenced or provided herein), which governing documents, in the case
of a Pass-Through Transfer, shall contain provisions customarily
included in publicly issued or privately placed rated secondary
mortgage market transactions, and which may include the Guarantor
Requirements referred to in Exhibit C to that certain Commitment
Letter, dated as of January 8, 2001, between the Servicer and the
Owner (or an affiliate of the Owner); in the case of any Agency
Transfer, the Reconstitution Agreements shall be those customarily
employed by Xxxxxx Xxx or Xxxxxxx Mac for transactions of such nature;
(ii) to cooperate fully with the Owner, Xxxxxx Mae,
Xxxxxxx Mac and any prospective purchaser, at the Owner's expense,
with respect to all reasonable requests and due diligence procedures
including participating in meetings with rating agencies, Xxxxxx Mae,
Xxxxxxx Mac, bond insurers, loss mitigation advisors and such other
parties as the Owner shall designate and participating in meetings
with prospective purchasers of the Mortgage Loans or interests therein
and providing information contained in the Mortgage Loan Schedule
including any diskette or other related data tapes provided as
reasonably requested by such purchasers;
(iii) to negotiate and execute one or more master
servicing agreements between the Servicer and any third party servicer
which is servicing loans on behalf of the Owner providing for such
third party servicer to master service such Mortgage Loans on behalf
of the Owner;
(iv) to negotiate and execute one or more
subservicing agreements between the Servicer and any master servicer
which is generally considered to be a prudent master servicer in the
secondary mortgage market designated by the Owner in its sole
discretion after consultation with the Servicer and/or one or more
custodial and servicing agreements among the Owner or an affiliate of
the Owner, the Servicer and a third party custodian/trustee which is
generally considered to be a prudent custodian/trustee in the
secondary mortgage market designated by the Owner in its sole
discretion after consultation with the Servicer, in either case for
the purpose of pooling the Mortgage Loans with other mortgage loans
for resale or securitization;
(iv) to negotiate and execute one or more loss
mitigation advisory agreements between the Servicer and any loss
mitigation advisor designated by the Owner in its sole discretion
containing provisions comparable to those referred to in Exhibit C to
that certain Commitment Letter, dated as of January 8, 2001, between
the Servicer and the Owner (or an affiliate of the Owner);
(v) in connection with a Pass-Through Transfer, a
Whole Loan Transfer, or any securitization of any Mortgage Loans, to
negotiate and execute a pooling and servicing agreement, which pooling
and servicing agreement may, at the Owner's direction, contain
contractual provisions including, but not limited to, a 24-day
certificate payment delay (54-day total payment delay), servicer
advances of delinquent scheduled payments of principal and interest
through liquidation (unless deemed non-recoverable) and payment of
compensating interest with respect to prepayment interest shortfalls
(to the extent of the monthly servicing fee payable thereto),
servicing representations and warranties which in form and substance
conform to secondary market standards for securities backed by
mortgage loans similar to the Mortgage Loans, and such provisions with
regard to servicing responsibilities, investor reporting, segregation
and deposit of principal and interest payments, custody of the
Mortgage Loans, and other covenants as are required by the Owner and
one or more nationally recognized rating agencies for "AAA" rated
mortgage pass-through transactions which are "mortgage related
securities" for purposes of the Secondary Mortgage Market Enhancement
Act of 1984, unless otherwise mutually agreed;
(vi) to deliver to the Owner and to any Person
designated by the Owner (a) for inclusion in any prospectus or other
offering material such publicly available information regarding the
Servicer, its financial condition and its mortgage loan delinquency,
foreclosure and loss experience and any additional information
requested by the Owner, (b) any similar non-public, unaudited
financial information (which the Owner may, at its option and at its
cost, have audited by certified public accountants) and such other
information as is reasonably requested by the Owner and which the
Servicer is capable of providing without unreasonable effort or
expense, and to indemnify the Owner and its affiliates for material
misstatements contained in such information, and (c) such statements
and audit letters of reputable, certified public accountants
pertaining to information provided by the Servicer pursuant to clause
(a) above as shall be reasonably requested by the Owner;
(vii) to deliver to the Owner, and to any Person
designated by the Owner, such legal documents and opinions of counsel
(which may be in-house opinions of counsel) in a form reasonably
acceptable to the Owner as are customarily delivered and reasonably
determined by the Owner to be necessary in connection with Agency
Transfers, Whole Loan Transfers or Pass-Through Transfers, as the case
may be, it being understood that the cost of any opinions of outside
special counsel that may be required for a Agency Transfer, Whole Loan
Transfer or Pass-Through Transfer, as the case may be, shall be the
responsibility of the Owner;
(viii) to provide, on an ongoing basis from
information obtained through its servicing of the Mortgage Loans, any
information necessary to enable the "tax matters person" for any REMIC
in a Pass-Through Transfer, including any master servicer or trustee
acting in such capacity, to perform its obligations in accordance with
applicable law and customary secondary mortgage market standards for
securitized transactions; and
(ix) to maintain any applicable custodial account
and escrow account in accordance with the requirements of the Rating
Agencies for a securitized transaction, which requirements may include
maintaining such custodial account and escrow account with a
depository institution the long-term unsecured debt rating of which is
rated "AA/Aa" or higher by the Rating Agencies.
(d) The Servicer shall provide to the Owner or issuer, as the
case may be, and any other participants in such Agency Transfer, Whole Loan
Transfer or Pass-Through Transfer, any and all information with respect to
itself, its servicing portfolio or the Mortgage Loans and appropriate
verification of information which may be reasonably available to the Servicer,
whether through letters of its auditors and counsel or otherwise, as the Owner
or any such other participant shall request upon reasonable demand.
(e) In the event the Owner has elected to have the Servicer
hold record title to the Mortgages, prior to a Reconstitution Date the Owner or
its designee shall prepare an Assignment of Mortgage in blank from the Owner,
acceptable to Xxxxxx Mae, Xxxxxxx Mac, the trustee or such third party, as the
case may be, for each Mortgage Loan that is part of an Agency Transfer, a Whole
Loan Transfer or Pass-Through Transfer and shall pay all preparation and
recording costs associated therewith. The Servicer shall execute each
Assignment of Mortgage, track such Assignments of Mortgage to ensure they have
been recorded and deliver them as required by Xxxxxx Mae, Xxxxxxx Mac, the
trustee or such third party, as the case may be, upon the Servicer's receipt
thereof. Additionally, the Servicer shall prepare and execute, at the direction
and expense of the Owner, any note endorsements in connection with any and all
Reconstitution Agreements; provided that Xxxxxx Capital shall be responsible
for the expenses with respect to the initial endorsements.
(f) All Mortgage Loans not sold or transferred pursuant to an
Agency Transfer, a Pass-Through Transfer or Whole Loan Transfer and any and all
Mortgage Loans repurchased by the Owner pursuant to Section 7.02 below with
respect to an Agency Transfer, a Pass-Through Transfer or Whole Loan Transfer
shall be subject to this Agreement and shall continue to be serviced in
accordance with the terms of this Agreement and with respect thereto this
Agreement shall remain in full force and effect.
Section 7.02 Owner's Repurchase and Indemnification
Obligations.
Upon receipt by the Servicer of notice from the trustee of a
Breach of any Owner representation or warranty contained in any Reconstitution
Agreement or a request by the trustee for the repurchase of any Mortgage Loan
transferred to Xxxxxx Xxx or Xxxxxxx Mac pursuant to an Agency Transfer, or to
a trustee pursuant to a Pass-Through Transfer or to a third party purchaser
pursuant to a Whole Loan Transfer, the Servicer shall promptly notify the Owner
of same and shall, at the direction of the Owner, use its Best Efforts to cure
and correct any such Breach and to satisfy the requests or concerns of Xxxxxx
Mae, Xxxxxxx Mac, the trustee or the third party purchaser related to such
deficiencies of the related Mortgage Loans transferred to Xxxxxx Mae, Xxxxxxx
Mac, the trustee or other such third party purchaser.
The Owner shall repurchase from the Servicer any Mortgage
Loan transferred to Xxxxxx Mae or Xxxxxxx Mac pursuant to an Agency Transfer,
or transferred to a trustee pursuant to a Pass-Through Transfer or to a third
party purchaser pursuant to a Whole Loan Transfer with respect to which the
Servicer has been required by Xxxxxx Mae, Xxxxxxx Mac, the trustee or such
third party purchaser to repurchase due to a breach of a representation,
warranty or covenant made by the Owner in this Agreement or in any
Reconstitution Agreement with respect to the Mortgage Loans; provided, however,
that such obligation to repurchase is not due to a breach of the Servicer's
obligations under the Reconstitution Agreement or pursuant to this Agreement.
The repurchase price to be paid by the Owner to the Servicer shall equal that
repurchase price paid by the Servicer to Xxxxxx Mae, Xxxxxxx Mac, the trustee
or the third party purchaser plus all reasonable costs and expenses borne by
the Servicer in connection with the cure of said Breach of a representation or
warranty made by the Owner and in connection with the repurchase of such
Mortgage Loan from Xxxxxx Mae, Xxxxxxx Mac, the trustee or the third party
purchaser, including, but not limited to, reasonable and necessary attorneys'
fees.
At the time of repurchase, the Custodian and the Servicer
shall arrange for the reassignment of the repurchased Mortgage Loan to the
Owner according to the Owner's instructions and the delivery to the Custodian
of any documents held by Xxxxxx Mae, Xxxxxxx Mac, the trustee or other relevant
third party purchaser with respect to the repurchased Mortgage Loan pursuant to
the related Reconstitution Agreement. In the event of a repurchase, the
Servicer shall, simultaneously with such reassignment, give written notice to
the Owner that such repurchase has taken place, and amend the Mortgage Loan
Schedule to reflect the addition of the repurchased Mortgage Loan to this
Agreement. In connection with any such addition, the Servicer and the Owner
shall be deemed to have made as to such repurchased Mortgage Loan the
representations and warranties set forth in this Agreement except that all such
representations and warranties set forth in this Agreement shall be deemed made
as of the date of such repurchase.
Section 7.03 Indemnification; Third Party Claims.
The Servicer shall indemnify the Owner and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and any other
costs, fees and expenses that the Owner may sustain in any way related to the
failure of the Servicer to perform its duties and service the Mortgage Loans in
compliance with the terms of this Agreement or any Reconstitution Agreement
entered into pursuant to Section 7.01. The Servicer immediately shall notify
the Owner if a claim is made by a third party with respect to this Agreement or
any Reconstitution Agreement or the Mortgage Loans, shall promptly notify
Xxxxxx Mae, Xxxxxxx Mac, or the trustee with respect to any claim made by a
third party with respect to any Reconstitution Agreement, assume (with the
prior written consent of the Owner) the defense of any such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
the Owner in respect of such claim. The Servicer shall follow any written
instructions received from the Owner in connection with such claim. The Owner
promptly shall reimburse the Servicer for all amounts advanced by it pursuant
to the preceding sentence except when the claim is in any way related to the
Servicer's indemnification pursuant to Section 6.02, or the failure of the
Servicer to service and administer the Mortgage Loans in compliance with the
terms of this Agreement or any Reconstitution Agreement.
The Owner shall indemnify the Servicer and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and any other
costs, fees and expenses that the Servicer may sustain in any way related to
the failure of the Owner to perform its duties in compliance with the terms of
this Agreement or any Reconstitution Agreement entered into pursuant to Section
7.01.
ARTICLE VIII
THE SERVICER
Section 8.01 Merger or Consolidation of the Servicer.
The Servicer shall keep in full effect its existence, rights
and franchises as a corporation, and shall 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 the Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Servicer shall be a party, or any Person succeeding
to the business of the Servicer, shall be the successor of the 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, provided, however, that the successor or surviving Person
shall be an institution (i) having a net worth of not less than $25,000,000,
and (ii) which is a Xxxxxx Mae- and Xxxxxxx Mac-approved servicer in good
standing.
Section 8.02 Limitation on Liability of the Servicer and
Others.
Neither the Servicer nor any of the directors, officers,
employees or agents of the Servicer shall be under any liability to the 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 the Servicer or any such person against
any Breach of warranties or representations made herein, or failure to perform
its obligations in compliance with any standard of care set forth in this
Agreement, or any liability which would otherwise be imposed by reason of any
breach of the terms and conditions of this Agreement. The Servicer and any
director, officer, employee or agent of the Servicer may rely in good faith on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The 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 expense or
liability, provided, however, that the Servicer may, with the consent of the
Owner, undertake any such action which it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto. In
such event, the Servicer shall be entitled to reimbursement from the Owner of
the reasonable legal expenses and costs of such action.
Section 8.03 Limitation on Resignation and Assignment by
Servicer.
The Owner has entered into this Agreement with the Servicer
and subsequent Owners will purchase the Mortgage Loans in reliance upon the
independent status of the Servicer, and the representations as to the adequacy
of its servicing facilities, plant, personnel, records and procedures, its
integrity, reputation and financial standing, and the continuance thereof.
Therefore, the Servicer 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 Servicer shall be
fully liable for such tasks as if the Servicer performed them itself) or sell
or otherwise dispose of all or substantially all of its property or assets
without the prior written consent of the Owner, which consent shall be granted
or withheld in the reasonable discretion of the Owner.
The Servicer shall not resign from the obligations and duties
hereby imposed on it except by mutual consent of the Servicer and the Owner or
upon the determination that its duties hereunder are no longer permissible
under applicable law and such incapacity cannot be cured by the Servicer. Any
such determination permitting the resignation of the Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Owner which
Opinion of Counsel shall be in form and substance acceptable to the Owner. No
such resignation shall become effective until a successor shall have assumed
the Servicer's responsibilities and obligations hereunder in the manner
provided in Section 10.01.
Without in any way limiting the generality of this Section
8.03, in the event that the Servicer either shall assign this Agreement or the
servicing responsibilities hereunder or delegate its duties hereunder or any
portion thereof (to other than a third party in the case of outsourcing routine
tasks such as taxes, insurance and property inspection, in which case the
Servicer shall be fully liable for such tasks as if the Servicer performed them
itself) or sell or otherwise dispose of all or substantially all of its
property or assets, without the prior written consent of the Owner, then the
Owner shall have the right to terminate this Agreement upon notice given as set
forth in Section 9.01 without any payment of any penalty or damages and without
any liability whatsoever to the Servicer or any third party.
ARTICLE IX
TERMINATION
Section 9.01 Termination for Cause.
This Agreement shall be terminable at the sole option of the
Owner, if any of the following events of default exist on the part of the
Servicer:
(a) any failure by the Servicer to remit to the Owner any
payment required to be made under the terms of this Agreement which continues
unremedied for a period of five days after the date upon which written notice
of such failure, requiring the same to be remedied, shall have been given to
the Servicer by the Owner; or
(b) failure by the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Servicer set forth in this Agreement which continues unremedied for a period of
30 days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Servicer by the Owner; or
(c) failure by the Servicer to maintain its license to do
business in any jurisdiction where the Mortgaged Property is located, except
where such failure to maintain a license does not have a material and adverse
effect on the Mortgage Loans or Owner's interest therein; or
(d) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, including bankruptcy,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 days; or
(e) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of its property; or
(f) the 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, bankruptcy or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of its
obligations or cease its normal business operations for three Business Days; or
(g) the Servicer ceases to meet the qualifications as both a
Xxxxxx Xxx and Xxxxxxx Mac servicer; or
(h) the Servicer fails to maintain a minimum net worth of
$25,000,000; or
(i) the Servicer attempts to assign its right to servicing
compensation hereunder or the 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 (to other
than a third party in the case of outsourcing routine tasks such as taxes,
insurance and property inspection, in which case the Servicer shall be fully
liable for such tasks as if the Servicer performed them itself) in violation of
Section 8.03.
In each and every such case, so long as an event of default
shall not have been remedied, in addition to whatsoever rights the Owner may
have at law or equity to damages, including injunctive relief and specific
performance, the Owner, by notice in writing to the Servicer, may terminate all
the rights and obligations of the Servicer under this Agreement and in and to
the servicing contract established hereby and the proceeds thereof.
Upon receipt by the Servicer of such written notice, all
authority and power of the Servicer under this Agreement, whether with respect
to the Mortgage Loans or otherwise, shall pass to and be vested in a successor
servicer appointed by the Owner. Upon written request from the Owner, the
Servicer shall prepare, execute and deliver to the successor entity designated
by the Owner 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, including but not limited to the transfer and
endorsement or assignment of the Mortgage Loans and related documents, at the
Servicer's sole expense. The Servicer shall cooperate with the Owner and such
successor in effecting the termination of the Servicer's responsibilities and
rights hereunder, 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 Servicer to the Custodial Account or Escrow Account or
thereafter received with respect to the Mortgage Loans.
By a written notice, the Owner may waive any default by the
Servicer in the performance of its obligations hereunder and its consequences.
Upon any 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.
Section 9.02 Termination Without Cause.
This Agreement shall terminate upon: (i) the later of (a) the
distribution of the final payment or liquidation proceeds on the last Mortgage
Loan to the Owner (or advances by the Servicer for the same), and (b) the
disposition of all REO Property acquired upon foreclosure of the last Mortgage
Loan and the remittance of all funds due hereunder, or (ii) mutual consent of
the Servicer and the Owner in writing or (iii) at the sole option of the Owner,
without cause, upon 30 days written notice. Any such notice of termination
shall be in writing and delivered to the Servicer by registered mail to the
address set forth at the beginning of this Agreement. The Owner and the
Servicer shall comply with the termination procedures set forth in Section
10.01 hereof and the procedures set forth below, provided that, in the event
the Owner terminates this Agreement without cause in accordance with subclause
(iii) above, the Owner shall pay the Servicer a termination fee equal to 0.75%
of the aggregate unpaid principal balance of the Mortgage Loans as of such
termination date.
In connection with any such termination referred to in clause
(ii) or (iii) above, the Owner will be responsible for reimbursing the Servicer
for all unreimbursed out-of-pocket Servicing Advances within 15 Business Days
following the date of termination and other reasonable and necessary
out-of-pocket costs associated with any transfer of servicing.
Notwithstanding and in addition to the foregoing, in the
event that (i) a Mortgage Loan becomes delinquent for a period of 90 days or
more (a "Delinquent Mortgage Loan") or (ii) a Mortgage Loan becomes an REO
Property, the Owner may at its election terminate this Agreement (a) with
respect to such Delinquent Mortgage Loan or (b) REO Property, in each case,
upon 15 days' written notice to the Servicer. In the event of such election,
the Owner shall reimburse the Servicer for all unreimbursed out-of-pocket
Servicing Advances and Monthly Advances on the date of termination and other
reasonable and necessary out-of-pocket costs associated with any transfer of
servicing, including, but not limited to, costs associated with the transfer of
the related files to the Owner's designee.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Successor to the Servicer.
Simultaneously with the termination of the Servicer's
responsibilities and duties under this Agreement pursuant to Sections 6.02,
7.03, 8.03, 9.01 or 9.02, the Owner shall (i) succeed to and assume all of the
Servicer's responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor having the characteristics set forth in
clauses (i) and (ii) of Section 8.01 and which shall succeed to all rights and
assume all of the responsibilities, duties and liabilities of the Servicer
under this Agreement simultaneously with the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement. In connection
with such appointment and assumption, the Owner may make such arrangements for
the compensation of such successor out of payments on Mortgage Loans as it and
such successor shall agree, provided, however, that no such compensation shall
be in excess of that permitted the Servicer under this Agreement without the
consent of the Owner. In the event that the Servicer's duties, responsibilities
and liabilities under this Agreement should be terminated pursuant to the
aforementioned sections, the 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 the
Servicer pursuant to the aforementioned sections shall not become effective
until a successor shall be appointed pursuant to this Section 10.01 and shall
in no event relieve the Servicer of the representations and warranties made
pursuant to Sections 6.01 and the remedies available to the Owner under Section
6.02 and 7.03, it being understood and agreed that the provisions of such
Sections 6.01, 6.02 and 7.03 shall be applicable to the Servicer
notwithstanding any such resignation or termination of the Servicer, or the
termination of this Agreement.
Within 30 days of the appointment of a successor entity by
the Owner, the Servicer 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, including but not limited to the transfer and endorsement of the
Mortgage Notes and related documents, and the preparation and recordation of
Assignments of Mortgage, at the discretion of the Owner and, at the Owner's
sole expense. The Servicer shall cooperate with the Owner and such successor in
effecting the termination of the Servicer's responsibilities and rights
hereunder and the transfer of servicing responsibilities to the successor
servicer, 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 Servicer to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Servicer and to the Owner an instrument
accepting such appointment, wherein the successor shall make the
representations and warranties set forth in Section 6.01, whereupon such
successor shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer, with like effect
as if originally named as a party to this Agreement. Any termination or
resignation of the Servicer or termination of this Agreement pursuant to
Sections 6.02, 7.03, 8.03, 9.01 or 9.02 shall not affect any claims that the
Owner may have against the Servicer arising out of the Servicer's actions or
failure to act prior to any such termination or resignation.
The Servicer shall deliver promptly to the successor servicer
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
Servicer 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 Servicer.
Upon a successor's acceptance of appointment as such, the
Servicer shall notify by mail the Owner of such appointment in accordance with
the procedures set forth in Section 10.07.
Section 10.02 Closing.
The closing for the engagement of the Servicer to perform the
servicing responsibilities respecting Mortgage Loans shall take place on the
Closing Date. At the Owner's option, the closing shall be either: by telephone,
confirmed by letter or wire as the parties shall agree; or conducted in person,
at such place as the parties shall agree.
The closing shall be subject to each of the following
conditions:
(a) all of the representations and warranties of the Servicer
and the Owner under this Agreement shall be true and correct as of the date
hereof and no event shall have occurred as of the date hereof which, with
notice or the passage of time, would constitute a default under this Agreement;
(b) the Owner and Servicer each shall have received, or the
Owner's attorneys shall have received in escrow, in each case, on or prior to
the closing of the transactions contemplated by that certain Loan Servicing
Purchase and Sale Agreement, dated as of the date hereof (the "Purchase and
Sale Agreement"), between the Owner, as seller, and the Servicer, as purchaser,
all Closing Documents as specified in Section 10.03 hereof, in such forms as
are agreed upon and acceptable to the Servicer and the Owner, duly executed by
all signatories other than the Owner as required pursuant to the respective
terms thereof; and
(c) the transactions contemplated by the Purchase and Sale
Agreement shall have been consummated in accordance with its terms; and
(d) all other terms and conditions of this Agreement shall
have been complied with and no default or Event of Default under this Agreement
shall have occurred and be continuing.
Section 10.03 Closing Documents.
The Closing Documents shall consist of fully executed
originals of the following documents:
(i) this Agreement (including all Exhibits hereto);
(ii) the Purchase and Sale Agreement (including all
Exhibits thereto);
(iii) the Mortgage Loan Schedule, with one copy to
be attached to each counterpart of this Agreement as Exhibit A;
(iv) an Assignment and Assumption Agreement in the
form of Exhibit I hereto;
(v) a Custodial Account Letter Agreement in the form
of Exhibit C hereto;
(vi) an Escrow Account Letter Agreement in the form
of Exhibit D hereto;
(vii) an Officer's Certificate of the Servicer, in
the form of Exhibit E-1 hereto, including all attachments thereto; and
(viii) an Opinion of Counsel of the Servicer in the
form of Exhibit G hereto.
Section 10.04 Appointment and Designation of Master
Servicer.
The Owner hereby appoints and designates Aurora Loan Services
Inc. as its master servicer (the "Master Servicer") for the Mortgage Loans
subject to this Agreement. The Servicer is hereby authorized and instructed to
take any and all instructions with respect to servicing the Mortgage Loans
hereunder as if the Master Servicer were the Owner hereunder. The authorization
and instruction set forth herein shall remain in effect until such time as the
Servicer shall receive written instruction from the Owner that such
authorization and instruction is terminated. The Servicer shall deliver all
notices, reports and remittances that the Servicer is obligated to deliver to
the Owner under this Agreement directly to the Master Servicer (or to any
successor master servicer named in any subsequent written notice received from
the Owner). The Master Servicer, acting on behalf of the Owner, shall have the
benefit of the covenants and agreements of the Servicer under this Agreement
and the Master Servicer, acting on behalf of the Owner, shall have the same
rights as the Owner to the to enforce the obligations of the Servicer arising
under this Agreement. The Master Servicer shall be entitled to terminate the
rights and obligations of the Servicer under this Agreement upon the occurrence
of an Event of Default as provided in this Agreement. Notwithstanding anything
herein to the contrary, in no event shall the Master Servicer assume any of the
obligations of the Owner under this Agreement; and in connection with the
performance of the Master Servicer's duties hereunder the Servicer agrees that
the Master Servicer shall be entitled to all of the rights, protections,
indemnities and limitations of liability afforded to the Owner under this
Agreement.
Section 10.05 Costs.
The Owner shall pay any commissions due its salesmen and the
legal fees and expenses of its attorneys. After the initial Assignments of
Mortgage have been prepared and recorded, the Owner shall pay the costs
associated with the preparation, endorsement, delivery and recording of
Assignments of Mortgages.
Section 10.06 Protection of Confidential Information.
The Servicer shall keep confidential and shall not divulge to
any party, without the Owner's prior written consent, any information
pertaining to the Mortgage Loans or any borrower thereunder, except to the
extent that it is appropriate for the Servicer to do so in working with legal
counsel, auditors, taxing authorities or other governmental agencies.
Section 10.07 Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed by overnight
courier, addressed as follows (or such other address as may hereafter be
furnished to the other party by like notice):
(i) if to the Owner:
Lehman Capital, A Division of
Xxxxxx Brothers Holdings Inc.
3 World Financial Center
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Manager, Contract Finance
(ii) if to the Servicer:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx,
Executive Vice President
with a copy to Countrywide's Deputy Corporate
Counsel, Corporate Finance, at the same address.
Any such demand, notice or communication hereunder shall be
deemed to have been received on the date delivered to or received at the
premises of the addressee.
Section 10.08 Severability Clause.
Any part, provision, representation or warranty of this
Agreement which is prohibited or which is held to be void or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to develop a structure the economic effect of which is as close as
possible to the economic effect of this Agreement without regard to such
invalidity.
Section 10.09 No Personal Solicitation.
From and after the Closing Date, the Servicer hereby agrees
that it will not take any action or permit or cause any action to be taken by
any of its agents or affiliates, or by any independent contractors or
independent mortgage brokerage companies on the Servicer's behalf, to
personally, by telephone or mail, solicit the Mortgagor under any Mortgage Loan
for the purpose of refinancing such Mortgage Loan; provided, that the Servicer
may solicit any Mortgagor for whom the Servicer has received a request for
verification of mortgage, a request for demand for payoff, a mortgagor
initiated written or verbal communication indicating a desire to prepay the
related Mortgage Loan, or the mortgagor initiates a title search, provided
further, it is understood and agreed that promotions undertaken by the Servicer
or any of its affiliates which (i) concern optional insurance products or other
additional projects or (ii) are directed to the general public at large,
including, without limitation, mass mailings based on commercially acquired
mailing lists, newspaper, radio and television advertisements shall not
constitute solicitation under this Section 10.09 nor is the Servicer prohibited
from responding to unsolicited requests or inquiries made by a Mortgagor or an
agent of a Mortgagor.
From and after the Closing Date, the Owner hereby agrees that
it will not take any action or permit or cause any action to be taken by any of
its agents or affiliates, or by any independent contractors or independent
mortgage brokerage companies on the Owner's behalf, to personally, by telephone
or mail, solicit the Mortgagor under any Mortgage Loan for the purpose of
refinancing such Mortgage Loan; provided, that the Owner may solicit any
Mortgagor that has initiated written or verbal communication indicating a
desire to prepay the related Mortgage Loan, provided further, it is understood
and agreed that promotions undertaken by the Owner or any of its affiliates
which (i) concern optional insurance products or other additional projects or
(ii) are directed to the general public at large, including, without
limitation, mass mailings based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute
solicitation under this Section 10.09 nor is the Owner prohibited from
responding to unsolicited requests or inquiries made by a Mortgagor or an agent
of a Mortgagor.
Section 10.10 Counterparts.
This Agreement may be executed simultaneously in any number
of counterparts. Each counterpart shall be deemed to be an original, and all
such counterparts shall constitute one and the same instrument.
Section 10.11 Place of Delivery and Governing Law.
This Agreement shall be deemed in effect when a fully
executed counterpart thereof is received by the Owner in the State of New York
and shall be deemed to have been made in the State of New York. The Agreement
shall be construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined
in accordance with the laws of the State of New York, except to the extent
preempted by Federal law.
Section 10.12 Further Agreements.
The Owner and the Servicer each agree to execute and deliver
to the other such reasonable and appropriate additional documents, instruments
or agreements as may be necessary or appropriate to effectuate the purposes of
this Agreement.
Section 10.11 Intention of the Parties.
It is the intention of the parties that the Owner is
conveying, and the Servicer is receiving only a contract for servicing the
Mortgage Loans. Accordingly, the parties hereby acknowledge that the Owner
remains the sole and absolute owner of the Mortgage Loans and all rights
related thereto.
Section 10.14 Successors and Assigns; Assignment of
Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Servicer and the Owner and the respective successors and
assigns of the Servicer and the Owner. This Agreement shall not be assigned,
pledged or hypothecated by the Servicer to a third party without the prior
written consent of the Owner, which consent shall be given at the sole
discretion of the Owner.
Section 10.15 Waivers.
No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
Section 10.16 Exhibits.
The exhibits to this Agreement are hereby incorporated and
made a part hereof and are an integral part of this Agreement.
Section 10.17 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) 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;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(c) references herein to "Articles", "Sections",
"Subsections", "Paragraphs", and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, Paragraphs and
other subdivisions of this Agreement;
(d) 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;
(e) 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
(f) the term "include" or "including" shall mean by reason of
enumeration.
Section 10.18 Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
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 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.
IN WITNESS WHEREOF, the Servicer and the Owner have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the date first above written.
XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.
(Owner)
By:______________________________________
Name:____________________________________
Title:___________________________________
COUNTRYWIDE HOME LOANS, INC.
(Servicer)
By:______________________________________
Name:____________________________________
Title:___________________________________
EXHIBIT A
MORTGAGE LOAN SCHEDULE
EXHIBIT B
INTENTIONALLY OMITTED
EXHIBIT C
CUSTODIAL ACCOUNT LETTER AGREEMENT
_________________, 200_
To: _________________________________
_________________________________
_________________________________
(the "Depository")
----------
As Servicer under the Servicing Agreement, dated as of
_______________, 2001, Fixed and Adjustable Rate Mortgage Loans (the
"Agreement"), we hereby authorize and request you to establish an account, as a
Custodial Account pursuant to Section 3.04 of the Agreement, to be designated
as "[SERVICER] in trust for Xxxxxx Capital, A Division of Xxxxxx Brothers
Holdings Inc., owner of Fixed and Adjustable Rate Mortgage Loans." All deposits
in the account shall be subject to withdrawal therefrom by order signed by the
Servicer. You may refuse any deposit which would result in violation of the
requirement that the account be fully insured as described below. This letter
is submitted to you in duplicate. Please execute and return one original to us.
[SERVICER]
Servicer
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Date: _____________________________________
The undersigned, as Depository, hereby certifies that the
above described account has been established under Account Number __________,
at the office of the Depository indicated above, and agrees to honor
withdrawals on such account as provided above. The full amount deposited at any
time in the account will be insured by the Federal Deposit Insurance
Corporation through the Bank Insurance Fund ("BIF") or the Savings Association
Insurance Fund ("SAIF").
____________________________________________
Depository
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Date: ______________________________________
EXHIBIT D
ESCROW ACCOUNT LETTER AGREEMENT
___________________, 200_
To: __________________________
__________________________
__________________________
(the "Depository")
----------
As Servicer under the Servicing Agreement, dated as of _______________, 2001,
Fixed and Adjustable Rate Mortgage Loans (the "Agreement"), we hereby authorize
and request you to establish an account, as an Escrow Account pursuant to
Section 3.06 of the Agreement, to be designated as "[SERVICER], in trust for
the Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings Inc., owner of Fixed
and Adjustable Rate Mortgage Loans, and various Mortgagors." All deposits in
the account shall be subject to withdrawal therefrom by order signed by the
Servicer. You may refuse any deposit which would result in violation of the
requirement that the account be fully insured as described below. This letter
is submitted to you in duplicate. Please execute and return one original to us.
[SERVICER]
Servicer
By: ______________________________
Name: ____________________________
Title: ___________________________
Date: ____________________________
The undersigned, as Depository, hereby certifies that the above described
account has been established under Account Number ______, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund ("BIF") or the Savings Association Insurance Fund ("SAIF").
__________________________________
Depository
By: ______________________________
Name: ____________________________
Title: ___________________________
Date: ____________________________
EXHIBIT E
SERVICER'S OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly
elected [Vice] President of [SERVICER], a corporation organized under the laws
of the State of _______, (the "Servicer") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and
complete copy of the charter of the Servicer which is in full force and effect
on the date hereof and which has been in effect without amendment, waiver,
rescission or modification.
2. Attached hereto as Exhibit 2 is a true, correct and
complete copy of the bylaws of the Servicer which are in effect on the date
hereof and which have been in effect without amendment, waiver, rescission or
modification.
3. Attached hereto as Exhibit 3 is an original certificate of
good standing of the Servicer, issued within ten days of the date hereof, and
no event has occurred since the date thereof which would impair such standing.
4. Attached hereto as Exhibit 4 is a true, correct and
complete copy of the corporate resolutions of the Board of Directors of the
Servicer authorizing the Servicer to execute and deliver the Servicing
Agreement, dated as of _____________, 2001 (the "Agreement"), by and between
the Servicer and Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings Inc.,
(the "Owner"), and such resolutions are in effect on the date hereof and have
been in effect without amendment, waiver rescission or modification.
5. To the best of my knowledge, either (i) no consent,
approval, authorization or order of any court or governmental agency or body is
required for the execution, delivery and performance by the Servicer of or
compliance by the Servicer with the Agreement or the consummation of the
transactions contemplated by the Agreement; or (ii) any required consent,
approval, authorization or order has been obtained by the Servicer.
6. To the best of my knowledge, neither the consummation of
the transactions contemplated by, nor the fulfillment of the terms of the
Agreement, conflicts or will conflict with or results or will result in a
breach of or constitutes or will constitute a default under the charter or
by-laws of the Servicer, the terms of any indenture or other agreement or
instrument to which the Servicer is a party or by which it is bound or to which
it is subject, or any statute or order, rule, regulations, writ, injunction or
decree of any court, governmental authority or regulatory body to which the
Servicer is subject or by which it is bound.
7. To the best of my knowledge, there is no action, suit,
proceeding or investigation pending or threatened against the Servicer which,
in my judgment, either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations, financial condition,
properties or assets of the Servicer or in any material impairment of the right
or ability of the Servicer to carry on its business substantially as now
conducted or in any material liability on the part of the Servicer or which
would draw into question the validity of the Agreement or of any action taken
or to be taken in connection with the transactions contemplated hereby, or
which would be likely to impair materially the ability of the Servicer to
perform under the terms of the Agreement.
8. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Servicer, signed the Agreement and any other
document delivered prior hereto or on the date hereof in connection with the
Agreement, was, at the respective times of such signing and delivery, and is
now, a duly elected or appointed, qualified and acting officer or
representative of the Servicer, who holds the office set forth opposite his or
her name on Exhibit 5, and the signatures of such persons appearing on such
documents are their genuine signatures.
9. The Company is duly authorized to engage in the
transactions described and contemplated in the Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and
affixed the seal of the Servicer.
Dated: ______________________________ By: ________________________________
Name: ______________________________
[Seal] Title: [Vice] President
I, ________________________, an [Assistant] Secretary of
_____________________, hereby certify that ____________ is the duly elected,
qualified and acting [Vice] President of the Servicer and that the signature
appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: ______________________________ By: ________________________________
Name: ______________________________
[Seal] Title: [Vice] President
EXHIBIT 5 to
Company's Officer's Certificate
Name Title Signature
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
EXHIBIT F
CUSTODIAL AGREEMENT
EXHIBIT G
FORM OF OPINION OF COUNSEL TO THE SERVICER
(date)
Xxxxxx Brothers Bank, FSB
[ADDRESS]
Dear Sirs:
You have requested [our] [my] opinion, as [Assistant] General
Counsel to [SERVICER] (the "Servicer"), with respect to certain matters in
connection with the servicing by the Servicer of the Mortgage Loans pursuant to
that certain Servicing Agreement, Fixed and Adjustable Rate Mortgage Loans, by
and between the Servicer and Xxxxxx Capital, A Division of Xxxxxx Brothers
Holdings Inc. (the "Owner"), dated as of _____________, 2001, (the "Servicing
Agreement") being executed contemporaneously with an Assignment and Assumption
Agreement by and between the Servicer and the Owner (the "Assignment and
Assumption Agreement"). Capitalized terms not otherwise defined herein have the
meanings set forth in the Servicing Agreement.
[We] [I] have examined the following documents:
1. the Servicing Agreement;
2. the Assignment and Assumption Agreement; and
3. such other documents, records and papers as [we] [I]
have deemed necessary and relevant as a basis for
this opinion.
To the extent [we] [I] have deemed necessary and proper, [we]
[I] have relied upon the representations and warranties of the Servicer
contained in the Servicing Agreement. [We] [I] have assumed the authenticity of
all documents submitted to me as originals, the genuineness of all signatures,
the legal capacity of natural persons and the conformity to the originals of
all documents.
Based upon the foregoing, it is [our] [my] opinion that:
1. The Company is a duly organized, validly existing
corporation in good standing under the laws of the state of ______________ and
is qualified to service and administer the Mortgage Loans in the states where
the Mortgaged Properties are located.
2. The Company has the power to engage in the transactions
contemplated by the Servicing Agreement and all requisite power, authority and
legal right to execute and deliver the Servicing Agreement and the Assignment
and Assumption Agreement, and to perform and observe the terms and conditions
of such instruments.
3. Each of the Servicing Agreement and the Assignment and
Assumption Agreement has been duly authorized, executed and delivered by the
Servicer and is a legal, valid and binding agreement enforceable in accordance
with its respective terms against the Servicer, subject to bankruptcy laws and
other similar laws of general application affecting rights of creditors and
subject to the application of the rules of equity, including those respecting
the availability of specific performance, none of which will materially
interfere with the realization of the benefits provided thereunder.
4. Either (i) no consent, approval, authorization or order of
any court or governmental agency or body is required for the execution,
delivery and performance by the Servicer of or compliance by the Servicer with
the Servicing Agreement or the Assignment and Assumption Agreement, or the
servicing of the Mortgage Loans or the consummation of the transactions
contemplated by the Servicing Agreement; or (ii) any required consent,
approval, authorization or order has been obtained by the Servicer.
5. Neither the consummation of the transactions contemplated
by, nor the fulfillment of the terms of, the Servicing Agreement or the
Assignment and Assumption Agreement conflicts or will conflict with or results
or will result in a breach of, or constitutes or will constitute a default
under, the charter or by-laws of the Servicer, the terms of any indenture or
other agreement or instrument to which the Servicer is a party or by which it
is bound or to which it is subject, or violates any statute or order, rule,
regulations, writ, injunction or decree of any court, governmental authority or
regulatory body to which the Servicer is subject or by which it is bound.
6. There is no action, suit, proceeding or investigation
pending or, to the best of [our] [my] knowledge, threatened against the
Servicer which, in [our] [my] judgment, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Servicer or in any
material impairment of the right or ability of the Servicer to carry on its
business substantially as now conducted or in any material liability on the
part of the Servicer or which would draw into question the validity of the
Servicing Agreement, the Assignment and Assumption Agreement or of any action
taken or to be taken in connection with the transactions contemplated thereby,
or which would be likely to impair materially the ability of the Servicer to
perform under the terms of the Assignment and Assumption Agreement or the
Servicing Agreement.
This opinion is given to you for your sole benefit, and no
other person or entity is entitled to rely hereon except that the Owner or
Owners to which you resell the Mortgage Loans may rely on this opinion as if it
were addressed to them as of its date, provided that the Servicer remains the
Servicer of the Mortgage Loans under the Servicing Agreement.
Very truly yours,
Name
[Assistant] General Counsel
EXHIBIT H
INTENTIONALLY OMITTED
EXHIBIT I
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION, dated as of ____________ between
Lehman Capital, A Division of Xxxxxx Brothers Holdings Inc. having an office at
3 World Financial Center, New York, New York 10285 ("Assignor") and [SERVICER],
having an office at ______________________ ("Assignee"):
For and in consideration of the sum of TEN DOLLARS ($10.00)
and other valuable consideration the receipt and sufficiency of which hereby
are acknowledged, and of the mutual covenants herein contained, the parties
hereto hereby agree as follows:
1. The Assignor hereby grants, transfers and assigns to Assignee, all
of the right, title and interest of Assignor, as "Servicer", with respect to
the mortgage loans identified on Exhibit A (the "Mortgage Loans"), under that
certain Custodial Agreement, dated as of [_________, ____] (the "Agreement"),
by and between Assignor as owner and servicer, and [_____________] (the
"Custodian").
The Assignor specifically reserves any and all right, title
and interest and all obligations of the Assignor with respect to any mortgage
loans subject to the Agreement which are not the Mortgage Loans set forth on
Exhibit A hereto and are not the subject of this Assignment and Assumption
Agreement.
2. The Assignor warrants and represents to, and covenants with, the
Assignee that with respect to the Mortgage Loans:
a. The Assignor is assigning its interest as Servicer under
the Agreement for the sole purpose of permitting the Assignee as Servicer of
the Mortgage Loans, to act as Servicer under the Agreement; and
b. The Assignor has not waived or agreed to any waiver under,
or agreed to any amendment or other modification of, the Agreement. The
Assignor has no knowledge of, and has not received notice of, any waivers under
or amendments or other modifications of, or assignments of rights or
obligations under the Agreement.
3. The Assignee warrants and represents to, and covenants with, the
Assignor and the Custodian pursuant to the Agreement that the Assignee agrees
to be bound, as Servicer, by all of the terms, covenants and conditions of the
Agreement and from and after the date hereof, the Assignee assumes for the
benefit of the Assignor all of the Assignor's obligations as Servicer
thereunder.
IN WITNESS WHEREOF, the parties have caused this Assignment
and Assumption Agreement to be executed by their duly authorized officers as of
the date first above written.
[SERVICER] XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.
Assignor
Assignee
By:__________________________________ By______________________________
Its:_________________________________ Its:____________________________
EXHIBIT A
MORTGAGE LOAN SCHEDULE
