FLOW SERVICING AGREEMENT
between
▇▇▇▇▇▇ CAPITAL, A DIVISION OF ▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
OWNER
and
AURORA LOAN SERVICES INC.
SERVICER
Dated as of September 1, 1997
Residential Adjustable and Fixed Rate Mortgage Loans
Group No. 1997-ALSI
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
OWNER'S ENGAGEMENT OF SERVICER TO PERFORM SERVICING RESPONSIBILITIES
Section Page
------- ----
2.01 Contract for Servicing; Possession
of Servicing Files ......................... 13
2.02 Books and Records................................. 13
2.03 Commencement of Servicing Responsibilities ....... 14
2.04 Owner Covenants Regarding Transfer of Servicing .. 14
2.05 Custodial Agreement .............................. 16
ARTICLE III
SERVICING THE MORTGAGE LOANS
3.01 Servicer to Service .............................. 18
3.02 Collection of Mortgage Loan Payments ............. 20
3.03 Establishment of and Deposits to
Custodial Account ........................... 20
3.04 Permitted Withdrawals From
Custodial Account ........................... 21
3.05 Establishment of and Deposits to
Escrow Account .............................. 22
3.06 Permitted Withdrawals From Escrow Account ........ 22
3.07 Maintenance of FHA Mortgage Insurance and
VA Guaranty ................................. 23
3.08 Notification of Adjustments ...................... 23
3.09 Completion and Recordation of Assignment of
Mortgage and FHA and VA Change Notices ...... 24
3.10 Protection of Accounts ........................... 24
3.11 Title, Management and Disposition of REO Property. 25
3.12 Real Estate Owned Reports ........................ 26
ARTICLE IV
PAYMENTS TO OWNER
4.01 Remittances....................................... 27
4.02 Statements to Owner .............................. 27
4.03 Monthly Advances by Servicer ..................... 28
ARTICLE V
GENERAL SERVICING PROCEDURES
5.01 Servicing Compensation ........................... 29
5.02 Reimbursement of Servicing Advances .............. 29
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND AGREEMENTS; REMEDIES AND BREACH
6.01 Representations, Warranties and
Agreements of the Servicer ................. 30
6.02 Remedies for Breach of Representations
and Warranties of the Servicer ............. 31
6.03 Representations and Warranties of
the Owner .................................. 32
6.04 Remedies for Breach of Representations
and Warranties of the Owner ................ 33
ARTICLE VII
AGENCY TRANSFER; WHOLE LOAN TRANSFER; PASS-THROUGH TRANSFER
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 ........ 35
7.02 Additional Indemnification by the
Servicer; Third Party Claims ............... 36
7.03 Monthly Advances, Compensating Interest and
Servicing Fees after Reconstitution ........ 37
7.04 Maintenance of Custodial and Escrow Accounts
after Reconstitution ....................... 37
7.05 Owner's Repurchase and Indemnification
Obligations ................................ 38
7.06 Termination Fees after Reconstitution .......... 39
7.07 Additional Remittance ........................... 39
7.08 Transfer of Servicing Following Reconstitution .. 40
ARTICLE VIII
THE SERVICER
8.01 Merger or Consolidation of the Servicer ......... 41
8.02 Limitation on Liability of the Servicer
and Others ................................. 41
8.03 Limitation on Resignation and Assignment
by the Servicer ........................... 41
ARTICLE IX
TERMINATION
9.01 Termination For Cause ........................... 42
9.02 Termination Without Cause ....................... 43
ARTICLE X
MISCELLANEOUS PROVISIONS
10.01 Successor to the Servicer ................. 45
10.02 Closing.................................... 46
10.03 Closing Documents ......................... 47
10.04 Costs ..................................... 48
10.05 Protection of Confidential Information .... 48
10.06 Notices ................................... 48
10.07 Severability Clause ....................... 49
10.08 No Personal Solicitation .................. 49
10.09 Counterparts .............................. 50
10.10 Place of Delivery and
Governing Law ............................. 50
10.11 Further Agreements ........................ 50
10.12 Intention of the Parties .................. 50
10.13 Successors and Assigns; Assignment of
Servicing Agreement ....................... 51
10.14 Waivers ................................... 51
10.15 Exhibits .................................. 51
10.16 General Interpretive Principles ........... 51
10.17 Reproduction of Documents ................. 51
EXHIBITS
EXHIBIT A MORTGAGE LOAN SCHEDULE
EXHIBIT B-1 FORM OF ACKNOWLEDGMENT AGREEMENT
EXHIBIT B-2 FORM OF CONFIRMATION AGREEMENT
EXHIBIT C CUSTODIAL ACCOUNT LETTER AGREEMENT
EXHIBIT D ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT E-1 OFFICER'S CERTIFICATE FOR FIRST CLOSING
EXHIBIT E-2 OFFICER'S CERTIFICATE FOR SUBSEQUENT CLOSINGS
EXHIBIT F FORM OF CUSTODIAL AGREEMENT
EXHIBIT G FORM OF OPINION OF COUNSEL OF THE SERVICER
EXHIBIT H FORM OF COLLATERAL PLEDGE AND SECURITY AGREEMENT
FLOW SERVICING AGREEMENT
This is a Flow Servicing Agreement (the "Agreement"), dated as of
September 1, 1997, by and between ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇
Brothers Holdings Inc., having an office at Three World Financial Center,
12th Floor, New York, New York 10285 (the "Owner") and Aurora Loan Services
Inc., having an office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Servicer").
W I T N E S S E T H
WHEREAS, the Owner shall acquire from time to time certain
ownership to and the servicing rights for certain fixed and adjustable rate
first and second lien mortgage loans ("Conventional Loans") and/or certain
FHA insured ("FHA Loans") and VA guaranteed ("VA Loans") mortgage loans from
various third party sellers and servicers thereof (the Conventional Loans,
FHA Loans and VA Loans collectively referred to herein as the "Mortgage
Loans");
WHEREAS, the Owner desires to contract with the Servicer for the
servicing responsibilities associated with the Mortgage Loans and the
Servicer desires to assume the servicing responsibilities to such Mortgage
Loans; and
WHEREAS, the Owner desires to sell some or all of the Mortgage
Loans from time to time (a) to FNMA under its Cash Purchase Program or MBS
SWAP Program (Special Servicing Option) (each a "FNMA Transfer"); or (b) to
FHLMC under its ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Program or Gold PC Program (the "FHLMC
Transfer"); or (c) to GNMA under its MBS Swap Program I (the "GNMA
Transfer");or (d) to one or more third party purchasers in one or more whole
loan pools (each a "Whole Loan Transfer"); or (e) 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 lending institutions
which service mortgage loans of the same type as such Mortgage Loans in the
jurisdiction where the related Mortgaged Property is located.
Acknowledgment Agreement: The document to be executed by the Owner
and the Servicer which document shall amend the Mortgage Loan Schedule
attached as Exhibit A hereto to reflect the addition of Mortgage Loans to
such Exhibit A and which document reflects the addition of Mortgage Loans
which are subject to the terms and conditions of this Agreement.
Act: The National Housing Act, as amended from time to time.
Additional Remittance: With respect to each Mortgage Loan subject
to an Agency Transfer, a Whole Loan Transfer or a Pass-Through Transfer, the
portion of the Reconstituted Servicing Fee received by the Servicer under a
Reconstitution Agreement which amount shall be equal to the difference
between such Reconstituted Servicing Fee and the Servicing Fee set forth
herein, which amount shall be remitted to the Owner or its assigns and shall
be freely transferable by the Owner or its assigns.
Additional Remittance Date: The last Business Day of each month of
the related Remittance Date under the applicable Reconstitution Agreement.
Adjustable Rate Mortgage Loan: A Mortgage Loan serviced pursuant
to this Agreement under which the Mortgage Interest Rate is adjusted from
time to time in accordance with the terms and provisions of the Mortgage
Note.
Agency Transfer: The sale or transfer by Owner of some or all of
the Mortgage Loans to FNMA under its Cash Purchase Program or its MBS Swap
Program (Special Servicing Option) or to FHLMC under its ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Program or Gold PC Program, or to GNMA under its MBS Swap Program, retaining
the Servicer as "servicer" thereunder.
Agreement: This Flow Servicing Agreement and all amendments hereof
and supplements hereto.
Ancillary Income: All income derived from the Mortgage Loans,
other than Servicing Fees, 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 Owner shall retain
all Ancillary Income with the exception of optional insurance and
administrative fees payable as a direct result of the Servicer's efforts.
Applicable Agency: With respect to Conventional Loans, FNMA, and
with respect to FHA Loans or VA Loans, GNMA.
Appraised Value: The value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of
the Mortgaged Property.
Assignment Fee: The Assignment Fee indicated on the applicable
Acknowledgment Agreement, which fee shall be payable within 30 days following
the later to occur of (i) the completion of the transfer of all of the
applicable Mortgage Loan information onto the Servicer's computer system or
(ii) the receipt by the Owner of an invoice from the Servicer for the
Assignment Fee.
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, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering the Mortgage Loans secured by
Mortgaged Properties located in the same jurisdiction, if permitted by law.
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.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii)
a day on which banking and savings and loan institutions in the State of New
York are authorized or obligated by law or executive order to be closed.
Code: 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.
Collateral Pledge and Security Agreement: With respect to each
Reconstitution Date, the security agreement to be executed by the Owner and
the Servicer, in the form attached hereto as Exhibit H, which agreement shall
serve to create a security interest in favor of the Owner and its assigns in
the servicing rights related to the Mortgage Loans being reconstituted.
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.
Confirmation Agreement: The document to be executed by the Owner
and the Servicer and returned by the Servicer to the Owner in accordance with
Section 10.06 within 5 Business Days of receipt of such document from the
Owner which document shall confirm the Servicer's acceptance of its
engagement to perform servicing responsibilities for the Owner with respect
to additional Mortgage Loans.
Conventional Loan: A conventional residential first or second lien
fixed or adjustable rate Mortgage Loan which is neither FHA insured nor VA
guaranteed.
Costs: For any Person, any claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and other costs and expenses of such Person.
Custodial Account: The separate account or accounts created and
maintained pursuant to Section 3.03.
Custodial Agreement: The agreement or agreements governing the
retention of original Mortgage Loan documents which shall be substantially
similar in form and substance to the Custodial Agreement attached as Exhibit
F hereto.
Custodian: The Custodian under the related Custodial Agreement
identified in the related Confirmation Agreement and related Acknowledgment
Agreement, or its successors in interest or assigns or any successor to the
related Custodian under the Custodial Agreement as provided therein.
Determination Date: For each month that this Agreement is in
effect, the last Business Day of such month as determined by the Servicer on
a monthly basis.
Delinquent Mortgage Loan: A Mortgage Loan which is more than 89
days delinquent (without regard to any applicable grace period).
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace. With respect to the
Mortgage Loans for which payment from the Mortgagor is due on a day other
than the first day of the month, such Mortgage Loans will be treated as if
the Monthly Payment is due on the first day of the month following the actual
Due Date.
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 on the first day of the month of the Remittance
Date.
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:
(i) direct obligations of, and obligations fully guaranteed by,
the United States of America, or any agency or instrumentality
of the United States of America the obligations of which are
backed by the full faith and credit of the United States of
America; and
(ii) federal funds, demand and time deposits in, certificates of
deposits of, or bankers' acceptances issued by, any depository
institution or trust company incorporated or organized under
the laws of the United States of America or any state thereof
and subject to supervision and examination by federal and/or
state banking authorities, so long as at the time of such
investment or contractual commitment providing for such
investment the commercial paper or other short-term debt
obligations of such depository institution or trust company
(or, in the case of a depository institution or trust company
which is the principal subsidiary of a holding company, the
commercial paper or other short-term debt obligations of such
holding company) are rated "P-1" by ▇▇▇▇▇'▇ Investors Service,
Inc. and the long-term debt obligations of such holding
company) are rated "P-1" by ▇▇▇▇▇'▇ Investors Service, Inc.
and the long-term debt obligations of such depository
institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary
of a holding company, the long-term debt obligations of such
holding company) are rated at least "Aa" by ▇▇▇▇▇'▇ Investors
Service, Inc.;
provided, however, that no such instrument shall be an Eligible
Investment if such instrument evidences either (i) a right to receive only
interest payments with respect to the obligations underlying such instrument,
or (ii) both principal and interest payments derived from obligations
underlying such instrument and the principal and interest payments with
respect to such instrument provide a yield to maturity of greater than 120%
of the yield to maturity at par of such underlying obligations.
Errors and Omissions Insurance: Errors and Omissions Insurance to
be maintained by the Servicer pursuant to the FNMA Guides.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 3.05.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage 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
document.
Event of Default: Any event set forth in Section 9.01.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: The Federal Housing Administration, an agency within the
United States Department of Housing and Urban Development, or any successor
thereto and including the Federal Housing Commissioner and the Secretary of
Housing and Urban Development where appropriate under the FHA Regulations.
FHA Approved Mortgagee: A corporation or institution approved as a
mortgagee by FHA under the Act, and applicable HUD regulations, and eligible
to own and service mortgage loans such as the FHA Loans.
FHA Assigned Mortgage Loan: A Mortgage Loan that has been in
default for longer than the applicable FHA grace period and respecting which
written notice of an intention to assign has been filed with the FHA, whether
or not such Mortgage Loan has in fact been assigned to the FHA.
FHA Insurance Contract: The contractual obligation of FHA
respecting the insurance of a Mortgage Loan.
FHA Loan: A residential Mortgage Loan which is the subject of an
FHA Insurance Contract as evidenced by a mortgage insurance certificate.
FHA Mortgage Insurance: Mortgage insurance authorized under the Act and
provided by the FHA.
FHA Regulations: Regulations promulgated by HUD under the National
Housing Act, codified in 24 Code of Federal Regulations, and other HUD
issuances relating to FHA Loans, including the related handbooks, circulars,
notices and mortgagee letters.
FHLMC: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
Fidelity Bond: A fidelity bond to be maintained by the Servicer
pursuant to the FNMA Guides.
First Remittance Date: With respect to each Mortgage Loan, the 10th
day of the month following the month in which the related Transfer Date
occurs, or if such 10th day is not a Business Day, the first Business Day
immediately following such 10th day.
Fixed Rate Mortgage Loan: Any individual Mortgage Loan serviced
pursuant to this Agreement wherein the Mortgage Interest Rate set forth in
the Mortgage Note is fixed for the term of such Mortgage Loan.
FNMA: The Federal National Mortgage Association, or any successor
thereto.
FNMA Guides: The FNMA Selling Guide and the FNMA Servicing Guide
and all amendments or additions thereto.
GNMA: The Government National Mortgage Association, or any
successor thereto.
HUD: The Department of Housing and Urban Development, or any
federal agency or official thereof which may from time to time succeed to the
functions thereof with regard to FHA Mortgage Insurance. The term "HUD," for
purposes of this Agreement, is also deemed to include subdivisions thereof
such as the FHA and Government National Mortgage Association.
Initial Transfer Date: The first Transfer Date with respect to
servicing of Mortgage Loans hereunder.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds
of insurance policies insuring the Mortgage Loan or the related Mortgaged
Property including FHA insurance proceeds and/or VA guaranty proceeds.
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: 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) which was due on the Mortgage Loan, and (i) which was delinquent at the
close of business on the immediately preceding Determination Date and (ii)
which was not the subject of a previous Monthly Advance.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing
a Mortgage Note, which creates a first or second lien on an unsubordinated
estate in fee simple in real property securing the Mortgage Note.
Mortgage Impairment Insurance Policy: A mortgage impairment or
blanket hazard insurance policy as described in the FNMA Guides.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note.
Mortgage Loan: An individual 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 applicable Servicing Fee.
Mortgage Loan Schedule: A schedule of certain Mortgage Loans
setting forth information with respect to such Mortgage Loans, which schedule
supplements this Agreement and becomes part of Exhibit A hereof on the
related Transfer Date to reflect the addition of such Mortgage Loans to the
terms of this Agreement.
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.
Net Sale Proceeds: The proceeds from the sale of REO Property, net
of all expenses incurred by the Servicer in connection with such sale,
including, without limitation, legal fees and expenses, referral fees,
brokerage commissions, conveyance taxes and any other related expense.
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, and delivered to the Servicer 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.
Owner: ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ 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 a trust to be formed as part of a publicly-issued and/or
privately placed, rated or unrated, mortgage pass-through transaction,
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 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
the related Reconstituted Servicing Fee) 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 penalty 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.
Prior Servicer: Any prior servicer (other than the Servicer) of
any or all of the Mortgage Loans.
Qualified Depository: A depository the accounts of which are
insured by the FDIC and the debt obligations of which are rated in the two
highest categories by Standard & Poor's Ratings Group and ▇▇▇▇▇'▇ Investors
Service, Inc. and meets such requirements as are necessary for any
Reconstitution Agreement. The Servicer shall be deemed to be a Qualified
Depository under this Agreement so long as it meets the applicable
requirements of FNMA.
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 FNMA, FHLMC and GNMA.
Reconstitution Agreements: The agreement or agreements entered
into by the Owner, the Servicer, FNMA, FHLMC or GNMA or certain third parties
on the Reconstitution Date(s) with respect to any or all of the Mortgage
Loans serviced hereunder, in connection with a Whole Loan Transfer, a Pass-
Through Transfer or an Agency Transfer as set forth in Section 7.01,
including, but not limited to, (i) a FNMA Mortgage Selling and Servicing
Contract, a Pool Purchase Contract, and any and all servicing agreements and
tri-party agreements reasonably required by FNMA with respect to a FNMA
Transfer, (ii) a Purchase Contract and all purchase documents associated
therewith as set forth in the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇' & Servicers' Guide, and
any and all servicing agreements and tri-party agreements reasonably required
by FHLMC with respect to a FHLMC Transfer, (iii) any and all documents as set
forth in the GNMA Mortgage-Backed Securities Guide, and any and all servicing
agreements and tri-party agreements reasonably required by GNMA with respect
to a GNMA Transfer, (iv) 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 and (iv) a
seller's warranties and servicing agreement or a sale and servicing agreement
and related custodial agreement and closing documents with respect to a Whole
Loan Transfer. Such agreement or agreements shall prescribe the rights and
obligations of the Servicer in servicing the related Mortgage Loans and shall
provide for a Reconstituted Servicing Fee to the Servicer, net of any
guarantee fees due FNMA, FHLMC or GNMA, if applicable, at least equal to the
Servicing Fee due the Servicer in accordance with this Agreement or the
Reconstituted Servicing Fee required pursuant to the Reconstitution
Agreement, whichever is greater. The Reconstituted Servicing Fee and 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 provisions of
Section 9.02 hereof) and the representations and warranties and servicing
provisions contained therein shall be substantially similar to those
contained in this Agreement, 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,
other than the obligation to remit the Additional Remittance in accordance
with the provisions set forth in Section 7.07 hereof and the right of the
Owner to cause a transfer of the servicing responsibilities to the Mortgage
Loans and/or REO Properties in accordance with Section 7.08 hereof.
Reconstituted Servicing Fee: With respect to each reconstituted
Mortgage Loan that is subject to a Reconstitution Agreement, the monthly fee
to which the Servicer thereunder is entitled, which shall be equal to the
servicing fee specified in the applicable Reconstitution Agreement.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
Remittance Date: The 10th day (or if such 10th day is not a
Business Day, the first Business Day immediately following) of any month,
following the First Remittance Date.
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 3.11.
REO Property: A Mortgaged Property acquired by the Servicer on
behalf of the Owner through foreclosure or by deed in lieu of foreclosure,
pursuant to Section 3.11.
Servicer: Aurora Loan Services 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 and protection of the Mortgaged Property, (b) any enforcement or
administrative or judicial proceedings, including foreclosures, (c) the
management and liquidation of the Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage, (d) taxes, assessments,
water rates, sewer rents and other charges which are or may become a lien
upon the Mortgaged Property, and PMI Policy premiums and fire and hazard
insurance coverage, (e) any losses sustained by the Servicer with respect to
the liquidation of the Mortgaged Property and (f) compliance with the
obligations pursuant to the provisions of the FNMA Guides.
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 7.05 hereof and again becoming subject to
this Agreement, the servicing fee shall be, with respect to each (i) fixed
rate Mortgage Loan, an amount equal to $10.00 per month; (ii) adjustable rate
Mortgage Loan, an amount equal to $11.00 per month; and (iii) Delinquent
Mortgage Loan, an amount equal to $40.00 per month. Such fee shall be
payable monthly and shall be pro rated for any portion of a month during
which the Mortgage Loan is serviced pursuant to this Agreement.
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.
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies received
by the Servicer for servicing the Mortgage Loans; (c) any late fees,
penalties or similar payments with respect to the Mortgage Loans; (d) all
agreements or documents creating, defining or evidencing any such servicing
rights to the extent they relate to such servicing rights and all rights
of the Servicer thereunder; (e) Escrow Payments or other similar payments
with respect to the Mortgage Loans and any amounts actually collected
by the Servicer with respect thereto; (f) all accounts and other rights to
payment related to any of the property described in this paragraph; and (g)
any and all documents, files, records, servicing files, servicing documents,
servicing records, data tapes, computer records, or other information
pertaining to the Mortgage Loans or pertaining to the past, present or
prospective servicing of the Mortgage Loans.
Set-Up Fee: The set-up fee indicated on the applicable
Acknowledgment Agreement, which fee shall be payable within 30 days following
the later to occur of (i) the completion of the transfer of all of the
applicable Mortgage Loan information onto the Servicer's computer system or
(ii) the receipt by the Owner of an invoice from the Servicer for the Set-Up
Fee.
Transfer Date: The date or dates upon which the Servicer commences
the servicing responsibilities with respect to Mortgage Loans in accordance
with the terms set forth herein which dates shall be as set forth in the
related Confirmation Agreement and Acknowledgment Agreement.
VA: The Veterans Administration, an agency of the United States of
America, or any successor thereto including the Administrator of Veterans
Affairs.
VA Approved Lender: Those lenders which are approved by the VA to
act as a lender in connection with the origination of VA Loans.
VA Loan: A Mortgage Loan which is the subject of a VA Loan
Guaranty Agreement as evidenced by a Loan Guaranty Certificate, or a Mortgage
Loan which is a vendee loan sold by the VA.
VA Loan Guaranty Agreement: The obligation of the United States to
pay a specific percentage of a Mortgage Loan (subject to a maximum amount)
upon default of the Mortgagor pursuant to the Servicemen's Readjustment Act,
as amended.
VA Loan Guaranty Certificate: The certificate evidencing a VA Loan
Guaranty Agreement.
VA Regulations: Regulations promulgated by the Veteran's
Administration pursuant to the Servicemen's Readjustment Act, as amended,
codified in 38 Code of Federal Regulations, and other VA issuances relating
to VA Loans, including related Handbooks, Circulars and Notices.
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, by execution and delivery of this Agreement (and the
related Acknowledgment Agreement and Confirmation Agreement), does hereby
contract with the Servicer, subject to the terms of this Agreement, for the
servicing of the Mortgage Loans. On or before each Transfer Date, the Owner
shall cause to be delivered or will use its Best Efforts to cause to be
delivered the Servicing Files with respect to the Mortgage Loans listed on
the related Mortgage Loan Schedule to the Servicer to be held in trust for
the Owner pursuant to this Agreement. On or before each Transfer Date, the
Owner shall, with respect to the Mortgage Loans on the related Mortgage Loan
Schedule, execute and deliver an Acknowledgment Agreement in the form
attached hereto as Exhibit B-1, which Acknowledgment Agreement shall be
executed and delivered simultaneously by the Servicer to the Owner. Each
Servicing File delivered to the Servicer 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,
at the Owner's option, remain in the name of (i) the Servicer or (ii) in the
name as the Owner shall designate. Subject to Section 3.01(a) hereof, the
Owner, its designee or the Servicer shall prepare or cause to be prepared and
record or cause to be recorded any Assignments of Mortgage required pursuant
to this Section 2.02. and shall pay all necessary fees associated with the
preparation and recording of the Assignments of Mortgage. Notwithstanding
the foregoing, the Servicer shall cooperate with the Owner in the Owner's
preparation and recording of any and all Assignments of Mortgage.
Additionally, the Servicer shall prepare and execute, at the direction of the
Owner, 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 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.
On each Transfer Date, the Owner shall appoint the Servicer to
perform, and the Servicer shall assume and accept such appointment for, all
servicing responsibilities for the related Mortgage Loans on the related
Mortgage Loan Schedule. The engagement of the Servicer to perform the
servicing responsibilities hereunder is not mandatory and is expressly
conditioned upon the acquisition of the related Mortgage Loans by the Owner,
the election of the Owner respecting the engagement of the Servicer to
perform the related servicing responsibilities and the election, in the
manner hereinafter set forth, of the Servicer to accept such transfer.
Upon the Owner's determination in its sole discretion to engage the
Servicer to perform the servicing responsibilities with respect to
Conventional Loans, FHA Loans and/or VA Loans pursuant to the terms of this
Agreement, the Owner shall execute a Confirmation Agreement in the form
attached as Exhibit B-2 hereto, and deliver the same to the Servicer. The
Owner shall notify the Servicer by telephone of its determination to transfer
such servicing responsibilities to the Servicer and shall deliver the
Confirmation Agreement to the Servicer within 2 Business Days of such verbal
notification. The Servicer may elect to accept or reject on an all or
nothing basis such engagement to perform the servicing responsibilities with
respect to the additional Conventional Loans, FHA Loans and/or VA Loans by
either (i) in the case of an acceptance, executing the Confirmation Agreement
and delivering the same to the Owner in accordance with Section 10.06 within
5 Business Days of receipt of such Confirmation Agreement, or (ii) in the
case of a rejection, by written notification thereof delivered to the Owner
in accordance with Section 10.06 within 5 Business Days of receipt of such
Confirmation Agreement.
Section 2.04. Owner Covenants Regarding Transfer of Servicing.
On or before each Transfer Date the Owner shall use its Best
Efforts to cause the Prior Servicer to effectuate and evidence the transfer
of the servicing of the related Mortgage Loans from the Prior Servicer to the
Servicer including the following:
(a) Notice to Mortgagors. The Owner shall use its Best Efforts to
cause the Prior Servicer to mail to the Mortgagor of each Mortgage a letter
advising the Mortgagor of the transfer of the servicing thereof to the
Servicer, in accordance with the relevant provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
National Affordable Housing Act of 1990, as the same may be amended from time
to time, and the regulations provided in accordance with the Real Estate
Settlement Procedures Act. The Owner shall use its Best Efforts to cause the
Prior Servicer to promptly provide the Servicer with copies of all such
notices.
(b) Notice to Taxing Authorities and Insurance Companies and HUD (if
applicable). The Owner shall use its Best Efforts to cause the Prior
Servicer to transmit to the applicable taxing authorities and insurance
companies (including PMI Policy insurers, if applicable) and/or agents,
notification of the transfer of the servicing to the Servicer and
instructions to deliver all notices, tax bills and insurance statements, as
the case may be, to the Servicer from and after the related Transfer Date.
The Owner shall use its Best Efforts to cause the Prior Servicer to promptly
provide the Servicer with copies of all such notices. With respect to FHA
Loans, in addition to the requirements set forth above, the Owner shall use
its Best Efforts to cause the Prior Servicer to provide notice to HUD on HUD
Form 92080 or such other form prescribed by HUD.
(c) Delivery of Servicing Records. The Owner shall use its Best
Efforts to cause the Prior Servicer to forward to the Servicer all Servicing
Files and any other Mortgage Loan documents in the Prior Servicer's
possession relating to each Mortgage Loan.
(d) Escrow Payments. The Owner shall use its Best Efforts to cause the
Prior Servicer to provide the Servicer with immediately available funds by
wire transfer in the amount of the net Escrow Payments and suspense balances
and all loss draft balances associated with the Mortgage Loans. The Owner
shall use its Best Efforts to cause the Prior Servicer to provide the
Servicer with an accounting statement of Escrow Payments and suspense
balances and loss draft balances sufficient to enable the Servicer to
reconcile the amount of such payment with the accounts of the Mortgage Loans.
Additionally, the Owner shall use its Best Efforts to cause the Prior
Servicer to wire the Servicer the amount of any agency or trustee Mortgage
Loan payments, any prepaid Mortgage Loan payments and all other similar
amounts held by the Prior Servicer.
(e) Payoffs and Assumptions. The Owner shall use its Best Efforts to
cause the Prior Servicer to provide to the Servicer copies of all assumption
and payoff statements generated by the Prior Servicer on the Mortgage Loans.
(f) Mortgage Payments Received Prior to Transfer Date. The Owner
shall use its Best Efforts to cause the Prior Servicer to apply all payments
received by the Prior Servicer on each Mortgage Loan prior to the related
Transfer Date to the account of the particular Mortgagor.
(g) Mortgage Payments Received After Transfer Date. The Owner shall
use its Best Efforts to cause the Prior Servicer to forward the amount of any
Monthly Payments received by the Prior Servicer after the related Transfer
Date to the Servicer by overnight mail on the date of receipt. The Owner
shall use its Best Efforts to cause the Prior Servicer to notify the Servicer
of the particulars of the payment, which notification requirement shall be
satisfied if the Prior Servicer forwards with its payment sufficient
information to permit appropriate processing of the payment by the Servicer.
The Owner shall use its Best Efforts to cause the Prior Servicer to assume
full responsibility for the necessary and appropriate legal application of
Monthly Payments received by the Prior Servicer after the related Transfer
Date with respect to Mortgage Loans then in foreclosure or bankruptcy;
provided, for purposes of this Agreement, necessary and appropriate legal
application of such Monthly Payments shall include, but not be limited to
endorsement of a Monthly Payment to the Servicer with the particulars of
the payment such as the account number, dollar amount, date received and
any special Mortgagor application instructions.
(h) Reconciliation. The Owner shall use its Best Efforts to cause the
Prior Servicer to, on or before the related Transfer Date, reconcile
principal balances and make any monetary adjustments required by the
Servicer. Any such monetary adjustments will be transferred between the
Prior Servicer and the Servicer as appropriate.
(i) IRS Forms. The Owner shall use its Best Efforts to cause the Prior
Servicer to file all IRS forms 1098, 1099, 1099A or 1041 and K-1, or any
successor forms thereto, which are required to be filed on or before the
related Transfer Date in relation to the servicing and ownership of the
Mortgage Loans for the current calendar year. The Owner shall use its Best
Efforts to cause the Prior Servicer to provide copies of such forms to the
Servicer or the Mortgagors upon request and shall use its Best Efforts to
cause the Prior Servicer to reimburse the Servicer for any costs or penalties
incurred by the Servicer due to the Prior Servicer's failure to comply with
this paragraph.
Section 2.05. Custodial Agreement.
With respect to all Mortgage Loans which become subject to this
Agreement, pursuant to the related Custodial Agreement as identified in the
related Confirmation Agreement and related Acknowledgment Agreement, the
Owner shall deliver and release to the related Custodian on or prior to each
Transfer Date those Mortgage Loan documents required by the Custodial
Agreement with respect to each Mortgage Loan, a list of which is set forth in
Section 2 of the Custodial Agreement. In the event of any conflict,
inconsistency or discrepancy between any of the provisions of this Agreement
and any of the provisions of the Custodial Agreement, the provisions of this
Agreement shall control and be binding upon the Owner and the Servicer.
On or prior to each Transfer Date, the related Custodian shall have
certified its receipt of all Mortgage Loan documents required to be delivered
pursuant to the Custodial Agreement, as evidenced by the trust receipt and
initial certification of the related Custodian in the form annexed to the
Custodial Agreement. The Owner shall be responsible for, as and when due,
any and all initial document review fees, initial and final certification
fees and recertification fees and any costs associated with correcting any
deficiencies identified in connection with such review(s). The Owner shall
be responsible for maintaining the Custodial Agreement and shall pay all
other fees and expenses of the related Custodian including but not limited
to, (i) any and all annual and warehousing fees, (ii) any and all termination
fees in the event the related Custodian is terminated by the Owner, except
that the Servicer shall pay such termination fees in the event the related
Custodian is terminated pursuant to the Servicer's request and (iii) any and
all fees due in connection with the deposit or retrieval of a Mortgage Loan
document or documents (collectively, the "Custodial Fees"). With respect to
any Mortgage Loans which become subject to an Agency Transfer, upon the
request of the Servicer the Owner shall terminate the related Custodian and
be responsible for any related termination fees; provided, however, that the
Servicer shall (A) appoint a successor custodian that meets the requirements
of the related Reconstitution Agreement (such successor custodian may be the
Servicer if permitted under such Reconstitution Agreement) and (B) from and
after the date of such termination be responsible for any and all fees and
expenses of the successor custodian. Notwithstanding the foregoing, in the
event that the Servicer acquires the Servicing Rights to any or all the
Mortgage Loans pursuant to Section 7.01, all Custodial Fees associated
with such Mortgage Loans shall be paid by the Servicer.
The Servicer shall forward to the related Custodian original
documents evidencing an assumption, modification, consolidation or extension
of any Mortgage Loan entered into in accordance with this Agreement within
one week of their execution, provided, however, that the Servicer shall
provide the related Custodian with a certified true copy of any such document
submitted for recordation within one week of its 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 sixty days of its submission for
recordation. If such copy has not been returned by the applicable recording
office within sixty days of its submission, the Servicer shall notify the
Owner and the related Custodian of such delinquency, demonstrating that the
Servicer has used its Best Efforts to obtain such copy (the "Delinquent
Document"). Upon adequate demonstration of a Best Efforts attempt by the
Servicer to obtain the Delinquent Document, the Owner shall, in its sole
discretion, extend the time period for the receipt of the Delinquent Document
for a reasonable time period by which it is reasonably expected that the
Delinquent Document will be received.
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Servicer to Service.
The Servicer, as an independent contractor, shall service and
administer the Mortgage Loans from and after the related Transfer Date 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, including taking all actions that a
mortgagee is permitted or required to take by the FHA or VA, with respect to
FHA Loans and VA Loans, as the case may be. Except as set forth in this
Agreement, the Servicer shall service the Mortgage Loans in strict compliance
with the servicing provisions related to the FNMA MBS Program (Special
Servicing Option) of the FNMA Guides, which include, but are not limited to,
provisions regarding the liquidation of Mortgage Loans, the collection of
Mortgage Loan payments, the payment of taxes, insurance and other charges,
the maintenance of hazard insurance, the maintenance of mortgage impairment
insurance, the maintenance of a Fidelity Bond and Errors and Omissions
Insurance, inspections, the restoration of Mortgaged Property, the
maintenance of PMI Policies, insurance claims, the title, management and
disposition of REO Property, permitted withdrawals with respect to REO
Property, REO reports, liquidation reports, and reports of foreclosures and
abandonments of Mortgaged Property, the transfer of Mortgaged Property, the
release of Mortgage Loan documents, annual statements, and examination of
records and facilities. In the event of any conflict, inconsistency or
discrepancy between any of the servicing provisions of this Agreement and any
of the servicing provisions of the FNMA Guides, the provisions of this
Agreement shall control and be binding upon the Owner and the Servicer.
It is understood and agreed that the Owner shall approve all
foreclosures for which approval would be necessary by the Applicable Agency
prior to the commencement of any foreclosure proceedings and that the Owner
must approve any and all advances with respect to foreclosures made by the
Servicer in excess of 20% of the outstanding principal balance of the
applicable Mortgage Loan. In the event that Owner does not disapprove of any
such advance or foreclosure within three (3) days of receipt of notice of
such advance or foreclosure, then the Owner is deemed to have approved such
advance or foreclosure.
Notwithstanding the foregoing paragraph, the Owner and the Servicer
hereby agree as follows:
(a) As per the terms of the applicable Acknowledgment Agreement,
either (i) the Owner or the Owner's designee or (ii) the Servicer, for an
Assignment Fee, shall (A) prepare or cause to be prepared all Assignments of
Mortgage, (B) record or cause to be recorded all Assignments of Mortgage, (C)
shall pay the recording costs associated with the Mortgage Loans associated
with this Acknowledgment Agreement and/or (D) shall track such Assignments of
Mortgage to ensure they have been recorded for the Assignment Fee set forth
on the applicable Acknowledgment Agreement.
(b) The Servicer shall, in accordance with the relevant provisions
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ National Affordable Housing Act of 1990, as the same
may be amended from time to time, and the regulations provided in accordance
with the Real Estate Settlement Procedures Act, provide notice to the
Mortgagor of each Mortgage of the transfer of the servicing thereto to the
Servicer.
(c) The Servicer shall be responsible for the preparation and
costs associated with notifications to Mortgagors of the assumption of
servicing by the Servicer.
(d) The Owner shall retain all Ancillary Income.
Prior to a Mortgage Loan becoming subject to a Reconstitution
Agreement and consistent with the terms of this Agreement, the Servicer may
(i) waive, modify or vary any term of any Mortgage Loan or (ii) consent to
the postponement of strict compliance with any such term or (iii) in any
manner grant indulgence to any Mortgagor, if such modification would not
require the notification to and/or consent by the Applicable Agency, without
the prior consent of the Owner. Where such notification to and/or consent by
the Applicable Agency is required for any such modification, the Servicer
must first obtain the prior written consent of the Owner before making such
modification. In the event that the Owner does not disapprove of any such
modification within ten (10) days of receipt of a request for consent to such
modification, then the Owner is deemed to have consented to such
modification. Notwithstanding the foregoing, once a Mortgage Loan becomes
subject to a Reconstitution Agreement, the Servicer may not (i) waive, modify
or vary any term of any Mortgage Loan or (ii) consent to the postponement of
strict compliance with any such term or (iii) in any manner grant indulgence
to any Mortgagor without first obtaining the prior written consent of the
applicable Persons required thereunder.
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.
In servicing and administering the FHA Loans and VA Loans, the
Servicer shall comply strictly with the National Housing Act and the FHA
Regulations, the Servicemen's Readjustment Act, the VA Regulations and
administrative guidelines issued thereunder or pursuant thereto, and, to the
extent permitted hereunder, promptly discharge all of the obligations of the
mortgagee thereunder and under each Mortgage including the payment of any
fees, premiums and charges and the timely giving of notices.
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, the FNMA Guides, the FHA Regulations and the
VA Regulations, and the Owner's reliance on the Servicer.
Section 3.02 Collection of Mortgage Loan Payments.
Continuously from the related Transfer 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 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 3.03 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
"Aurora Loan Services Inc., in trust for ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇
Brothers Holdings Inc., owner of Residential Mortgage Loans, Group No. 1997-
ALSI, and various Mortgagors". The Custodial Account shall be established
with a Qualified Depository. Any funds deposited in the Custodial Account
may be invested in Eligible Investments subject to the provisions of Section
3.10 hereof. Funds deposited in the Custodial Account may be drawn on by the
Servicer in accordance with Section 3.04. The creation of any Custodial
Account shall be evidenced by a letter agreement in the form of Exhibit C. A
copy of such certification or 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 on a daily
basis, and retain therein, the following collections received by the Servicer
and payments made by the Servicer after the related Transfer Date:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds;
(v) all Ancillary Income;
(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;
(viii) any amounts required to be deposited by the Servicer in
connection with the deductible clause in any blanket hazard insurance policy;
and
(ix) any amounts received with respect to or related to any REO
Property or REO Disposition Proceeds.
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 3.04. Additionally, any other benefit
derived from the Custodial Account associated with the receipt, disbursement
and accumulation of principal, interest, taxes, hazard insurance, mortgage
insurance, etc. shall accrue to the Servicer.
Section 3.04 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) in the event the Servicer has elected not to retain the
Servicing Fee out of any Mortgagor payments on account of interest or other
recovery of interest with respect to a particular Mortgage Loan (including
late collections of interest on such Mortgage Loan, or interest portions of
Insurance Proceeds or Liquidation Proceeds) prior to the deposit of such
Mortgagor payment or recovery in the Custodial Account, to pay to itself the
related Servicing Fee from all such Mortgagor payments on account of interest
or other such Mortgagor payments on account of interst or other such recovery
for interst with repsect to that Mortgage Loan;
(iii) to pay itself interest on funds deposited in the
Custodial Account;
(iv) to clear and terminate the Custodial Account upon the
termination of this Agreement;
(v) to transfer funds to another Qualified Depository in
accordance with Section 3.10 hereof; and
(vi) to invest funds in certain Eligible Investments in accordance
with Section 3.10 hereof.
Section 3.05 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, "Aurora Loan Services Inc., in trust for ▇▇▇▇▇▇
Capital, A Division of ▇▇▇▇▇▇ Brothers Holdings Inc., owner of Residential
Mortgage Loans, Group No. 1997-ALSI, and various Mortgagors". 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
3.06. The creation of any Escrow Account shall be evidenced by a letter
agreement in the form of Exhibit D. A copy of such certification or 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 on a
daily basis, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as
required under the terms of this Agreement; and
(ii) all 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 3.06. 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. Additionally,
any other benefit derived from the Escrow Account associated with the
receipt, disbursement and accumulation of principal, interest, taxes, hazard
insurance, mortgage insurance, etc. shall accrue to the Servicer. 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 3.06 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, sewer rents, mortgage insurance premiums, condominium charges,
fire and hazard insurance premiums or other items constituting Escrow
Payments for the related Mortgage;
(ii) to refund to any Mortgagor any funds found to be in excess of
the amounts required under the terms of the related Mortgage Loan;
(iii) 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;
(iv) for application to restoration or repair of the Mortgaged
Property in accordance with the FNMA Guides;
(v) for transfer to the Custodial Account of fire and hazard
insurance proceeds and Escrow Payments with respect to any FHA Loan or VA
Loan, where the FHA or the VA, respectively, has directed application of
funds as a credit against the proceeds of the FHA Insurance Contract or VA
Loan Guaranty Agreement;
(iv) 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; and
(vii) to clear and terminate the Escrow Account on the
termination of this Agreement.
Section 3.07 Maintenance of FHA Mortgage Insurance and VA Guaranty.
With respect to FHA Loans and VA Loans, the Servicer shall maintain
and keep the FHA Mortgage Insurance and the VA Guaranty, respectively, in
full force and effect throughout the term of this Agreement and discharge its
obligations arising out of FHA Mortgage Insurance and the VA Guaranty
Certificate. The Servicer hereby agrees that it shall be liable to the Owner
for any loss, liability or expense incurred by the Owner by reason of any FHA
Mortgage Insurance or VA Guaranty being voided, reduced, released or
adversely affected by reason of the negligence or willful misconduct of the
Servicer. The Servicer will service and administer the Mortgage Loans in
accordance with the obligations of mortgagees under the Act and the
applicable regulations thereunder and under the Servicemen's Readjustment Act
and VA Regulations and will discharge all obligations of the mortgagee under
each Mortgage Loan including, with respect to FHA Loans and VA Loans, paying
all FHA and VA insurance premiums, fees or charges, as required, and, subject
to the right to assign the Mortgage Loan to the FHA or VA, as the case may
be, will take all action reasonably necessary to preserve the lien of such
Mortgage, including, the defense of actions to challenge or foreclose such
lien.
Section 3.08 Notification of Adjustments.
With respect to each Adjustable Rate 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
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 Assignments of Mortgage
and FHA and VA Change Notices.
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 (subject to Section 3.01(a)) at either the
Servicer's, Owner's or its designee's expense. At the Owner's direction, the
Servicer shall cause the endorsements on the Mortgage Note, the Assignments
of Mortgage (subject to Section 3.01(a)), the assignment of security
agreement and the HUD form 92080 Mortgage Record Change with respect to all
FHA Loans to be completed, and shall give notice to the VA of a transfer of
insurance credits, if applicable, with respect to VA Loans on the form
prescribed by the VA.
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.
The Servicer shall bear any expenses, losses or damages sustained
by the Owner if the Custodial Account and/or the Escrow Account are not
demand deposit accounts.
Amounts on deposit in the Custodial Account and the Escrow 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 (other than the Servicer) that maintains the Custodial
Account or the Escrow 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 or the Escrow Account, by the Servicer out of its own funds
immediately as realized.
Section 3.11 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 Owner, or in the event the Owner 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 two years after title has been taken to such REO Property, unless (a)
a REMIC election has not been made with respect to the arrangement under
which the Mortgage Loans and the REO Property are held, and (b) 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 two 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. Notwithstanding anything herein to the
contrary, the Servicer shall not be required to provide financing for the
sale of any REO Property.
The Servicer shall also maintain on each REO Property fire and
hazard insurance with extended coverage in amount which is at least equal to
the maximum insurable value of the improvements which are a part of such
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, the Servicer shall notify the
Owner of such offer in writing which notification shall set forth all
material terms of said offer (each a "Notice of Sale"). The Owner shall be
deemed to have approved the sale of any REO Property unless the Owner
notifies the Servicer in writing, within 1 Business Day after its receipt of
the related Notice of Sale, that it disapproves of the related sale. With
respect to any REO Property, upon a REO Disposition, the Servicer shall be
entitled to retain from REO Disposition Proceeds a disposition fee equal to
the lesser of (A) 1.5% of the Net Sale Proceeds or (B) $1,250; provided,
however, that (1) in the event that the REO Disposition Proceeds exceed
$25,000, such disposition fee shall not be less than $500 and (2) in the
event that the REO Disposition Proceeds are $25,000 or less, such disposition
fee shall be equal to $250. The proceeds of sale of the REO Property shall
be promptly deposited in the Custodial Account. After the expenses of such
disposition shall have been paid, the Servicer shall submit a reasonably
detailed invoice for reimbursement of Servicing Advances it incurred
thereunder. Such invoice shall be submitted on a monthly basis according to
Section 5.02 hereof.
The Servicer shall withdraw the Custodial Account funds necessary
for the proper operation, management and maintenance of the REO Property,
including the cost of maintaining any hazard insurance pursuant to the FNMA
Guides. The Servicer shall make monthly distributions on each Remittance
Date to the Owner 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 3.11 and of any reserves reasonably required from time to time
to be maintained to satisfy anticipated liabilities for such expenses).
Section 3.12 Real Estate Owned Reports.
Together with the statement furnished pursuant to Section 4.02, the
Servicer shall furnish to the Owner on or before the Remittance Date each
month a 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.
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 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 3.04).
With respect to any remittance received by the Owner after 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 two 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 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.
Not later than the Remittance Date, the Servicer shall furnish to
the Owner (a) a monthly remittance advice containing such information in the
form of FNMA form 2010 or such other form as shall be required by the FNMA
Guides or by the Owner as to the accompanying remittance and the period
ending on the preceding Determination Date and (b) all such information
required pursuant to clause (a) above on a magnetic tape or other similar
media reasonably acceptable to Owner.
In addition, not more than 60 days after the end of each calendar
year, commencing December 31, 1997, the Servicer shall furnish to each Person
who was an Owner of the Mortgage Loans at any time during such calendar year
as required by applicable law or if not required by applicable law, at the
request of the Owner 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 1998, the Servicer shall prepare and
file any and all tax returns, information statements or other filings for the
portion of the tax year 1997 and the portion of subsequent tax years for
which the Servicer has serviced some or all of the Mortgage Loans hereunder
as such returns, information statements or other filings are 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.
Subject to Section 7.03, the Servicer shall have no obligation to
advance any amounts constituting delinquent principal and interest payments
with respect to the Mortgage Loans.
ARTICLE V
GENERAL SERVICING PROCEDURES
Section 5.01 Servicing Compensation.
As consideration for servicing the Mortgage Loans subject to this
Agreement, the Servicer shall retain the relevant Servicing Fee for each
Mortgage Loan remaining subject to this Agreement during any month. Such
Servicing Fee shall be payable monthly.
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.
In addition to the servicing compensation that the Servicer shall
receive pursuant to this Section 5.01, the Owner reserves the right, but not
the obligation, to pay to the Servicer, in the Owner's sole discretion, an
incentive fee based upon the quality level at which the Servicer performs its
obligations pursuant to this Agreement. Such incentive fee shall be payable,
if any, in an amount and at a time specified by the Owner in its sole
discretion.
Section 5.02 Reimbursement of Servicing Advances.
The Owner shall reimburse the Servicer for Servicing Advances on a
monthly basis within 10 Business Days following the receipt from the Servicer
of reasonably detailed written invoices for any Servicing Advances along with
reasonably detailed supporting documentation in connection therewith. The
Servicer shall deliver such invoices and documentation, upon the request of
the Owner, at the time it delivers statements to the Owner in accordance with
Section 4.02 hereof.
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 each Transfer Date:
(a) Due Organization and Authority. The Servicer is a corporation
duly organized, validly existing and in good standing under the laws of the
state of Delaware and has all licenses, or is in the process of obtaining all
licenses (which in any event will be received by December 31, 1997),
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 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 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
organizational documents 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;
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;
No Litigation Pending. There is no action, suit, proceeding or
investigation pending or 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;
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 consent, approval, authorization or
order will be obtained prior to December 31, 1997;
Ability to Service. The Servicer is or will be prior to December
31, 1997 an FHA Approved Mortgagee, a VA Approved Lender and an approved
seller/servicer of conventional residential mortgage loans for FNMA, FHLMC or
GNMA, 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 or will be prior to December 31, 1997 in good
standing to service mortgage loans for the FHA and the VA and either FNMA,
FHLMC or GNMA;
No Untrue Information. Neither this Agreement nor any statement,
report or other document furnished or to be furnished pursuant to this
Agreement or in connection with the transactions contemplated hereby contains
any untrue statement of fact or omits to state a fact necessary to make the
statements contained therein not misleading; and
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 each Transfer Date hereunder 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
dutie0s 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, 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 Sections 10.01 and 10.02.
In addition, the Servicer shall indemnify the Owner and hold it
harmless against any Costs 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. It is
understood and agreed that the remedies set forth in this Section 6.02
constitute the sole remedies of the Owner 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 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 each Transfer 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 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 each Transfer Date;
(g) Ownership. The Owner is the sole owner and holder of the
Mortgage Loans. With respect to each Mortgage Loan which becomes subject to
this Agreement on a Transfer Date, the servicing responsibilities contracted
for as of the relevant Transfer Date have not been assigned or pledged, and,
the Owner has good and marketable interest therein, and 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, 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 each Transfer Date 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 Costs resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, (i) a breach of the Owner representations
and warranties contained in this Agreement; (ii) actions or omissions of a
Prior Servicer; and (iii) the failure of the Owner to cause any event to
occur which requires its "Best Efforts" under 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.
The Owner and the Servicer agree that with respect to some or all
of the Mortgage Loans, from time to time the Owner may, in its sole
discretion choose to reconstitute a portion or all of the Mortgage Loans
effecting any of the following:
(1) An Agency Transfer, and/or
(2) A Whole Loan Transfer, and/or
(3) A Pass-Through Transfer.
In connection with the foregoing, the Owner shall offer to sell the
Servicing Rights to the Servicer at a price specified by the Owner with
respect to the affected Mortgage Loans (each offer a "Purchase Offer"). The
Servicer shall, upon receipt of a Purchase Offer, have three (3) Business
Days to accept the terms of such Purchase Offer (the "Acceptance Period").
If the Servicer fails to accept the Purchase Offer by the expiration of the
Acceptance Period, the Purchase Offer shall be deemed rejected by the
Servicer and the Owner shall have the right to offer the Servicing Rights to
any third party upon comparable terms. Subject to Section 10.01, on the
related Reconstitution Date, the Mortgage Loans transferred shall cease to be
covered by this Agreement, except with respect to the obligation to remit the
Additional Remittance in accordance with the provisions set forth herein and
the right of the Owner to cause a transfer of the servicing responsibilities
with respect to the Mortgage Loans and/or REO Properties in accordance with
Sections 7.07 and 7.08, respectively.
The Servicer shall cooperate with the Owner in connection with any
Agency Transfer, Pass-Through Transfer or Whole Loan Transfer contemplated by
the Owner pursuant to this Section 7.01. In that connection, the Servicer
shall (a) execute any Reconstitution Agreement within a reasonable period of
time after receipt thereof which time shall be sufficient for the Servicer
and Servicer's counsel to review such Reconstitution Agreement, but such time
shall not exceed ten (10) Business Days after such receipt, and (b) provide
to FNMA, FHLMC, GNMA, the trustee or a third party purchaser, as the case may
be, subject to any Reconstitution Agreement and/or the Owner: (i) any and all
information 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 shall reasonably request; and (ii)
such additional representations, warranties, covenants, opinions of counsel,
letters from auditors, and certificates of public officials or officers of
the Servicer as are reasonably believed necessary by FNMA, FHLMC, GNMA, the
trustee, such third party purchaser, any master servicer, any rating agency
or the Owner, as the case may be, in connection with such transactions.
Prior to incurring any out-of-pocket expenses pursuant to this paragraph, the
Servicer shall notify the Owner in writing of the estimated amount of such
expense. The Owner shall reimburse the Servicer for any such
expense following its receipt of appropriate details thereof.
In accordance with Section 3.01(a) hereof, as per the terms of the
applicable Acknowledgment Agreement, either (i) the Owner or the Owner's
designee or (ii) the Servicer, for an Assignment Fee, shall (A) prepare or
cause to be prepared and record or cause to be recorded all Assignments of
Mortgage in blank from the then mortgagee of record, acceptable to FNMA,
FHLMC, GNMA, the trustee or such third party, as the case may be, for each
Mortgage Loan that is part of an Agency Transfer, Whole Loan Transfer or
Pass-Through Transfer and shall pay the recording costs associated therewith
and/or (B) shall track such Assignments of Mortgage to ensure they have been
recorded and deliver them as required by FNMA, FHLMC, GNMA, 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 of the
Owner, any note endorsements in connection with any and all Reconstitution
Agreements.
With respect to FHA Loans, prior to the related Reconstitution
Date, the Servicer shall prepare a HUD form 92080 Mortgage Record Change for
each FHA Loan. With respect to each VA Loan, prior to the related
Reconstitution Date, if applicable, the Servicer shall give notice to the VA
of a transfer of insurance credits with respect thereto.
All Mortgage Loans not sold or transferred pursuant to an Agency
Transfer, 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. Additional Indemnification by the Servicer; Third Party
Claims.
The Servicer shall indemnify the Owner and hold it harmless against
any and all Costs that the Owner may sustain in any way related to (i) the
failure of the Servicer to perform its duties and service the Mortgage Loans
in material compliance with the terms of this Agreement or any Reconstitution
Agreement entered into pursuant to Section 7.01 or (ii) the failure of the
Servicer to cause any event to occur which requires its "Best Efforts" under
this Agreement. The Servicer shall immediately 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 FNMA, FHLMC, GNMA, the
trustee or other relevant third party 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, promptly pay,
discharge and satisfy any judgment or decree which may be entered against it
or the Owner in respect of such claim and 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 material compliance
with the terms of this Agreement or any Reconstitution Agreement. In the
event a dispute arises between the Servicer and the Owner with respect to any
of the rights and obligations of the parties pursuant to this Agreement, and
such dispute is adjudicated in a court of law, by an arbitration panel or any
other judicial process, then the losing party shall indemnify and reimburse
the winning party for all attorney's fees and other costs and expenses
related to the adjudication of said dispute.
Section 7.03 Monthly Advances, Compensating Interest and Servicing
Fees after Reconstitution.
Notwithstanding anything contained herein to the contrary, in
connection with (a) a Pass-Through Transfer, the Servicer shall make Monthly
Advances through the Remittance Date immediately preceding the distribution
of all Liquidation Proceeds and other payments or recoveries (including
Insurance Proceeds and Condemnation Proceeds) with respect to the related
Mortgage Loans or such earlier time period as set forth in the related
Reconstitution Agreement, (b) an Agency Transfer, the Servicer shall make
Monthly Advances as required by FNMA, FHLMC or GNMA, as applicable, and (c) a
Whole Loan Transfer, the Servicer shall make Monthly Advances through the
Remittance Date immediately preceding the date that such Mortgage Loan
becomes REO Property.
Notwithstanding anything contained herein to the contrary, in
connection with a Reconstitution Agreement, the Servicing Fee as set forth on
the applicable Acknowledgment Agreement and/or Confirmation Agreement of each
reconstituted Mortgage Loan shall be changed upon reconstitution to the
Reconstituted Servicing Fee.
Notwithstanding anything contained herein to the contrary,
following a Reconstitution Agreement, with respect to each Principal
Prepayment of reconstituted Mortgage Loans, the Servicer shall deposit
in the Custodial Account on a daily basis, and retain therein 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;
Section 7.04 Maintenance of Custodial and Escrow Accounts after
Reconstitution.
Notwithstanding anything herein to the contrary, in connection with
(a) a Pass-Through Transfer, the Servicer shall maintain Custodial Accounts
and Escrow Accounts in accordance with the related master servicer's
requirements, and pursuant to the related Reconstitution Agreement, (b) an
Agency Transfer, the Servicer shall maintain Custodial Accounts and Escrow
Accounts in accordance with the requirements of FNMA, FHLMC or GNMA, as
applicable, and (c) a Whole Loan Transfer, the Servicer shall maintain
Custodial Accounts and Escrow Accounts in accordance with terms that are
substantially similar to the terms of this Agreement. For purposes of this
paragraph, the obligation to maintain Custodial Accounts and Escrow Accounts
includes the obligation of the Servicer to remove amounts from such accounts
that exceed the amount fully insured by the FDIC, if required by the
applicable investor. In connection with any Pass-Through Transfer, Agency
Transfer, or Whole Loan Transfer the Servicer shall be obligated to maintain
the related Custodial Accounts and Escrow Accounts with such institutions
required by the applicable investor, which institutions might not include the
Servicer.
Section 7.05. Owner's Repurchase and Indemnification Obligations.
Upon receipt by the Servicer of notice from FNMA, FHLMC, GNMA or
other such third party purchaser of a breach of any Owner representation or
warranty contained in any Reconstitution Agreement or a request by FNMA,
FHLMC, GNMA, the trustee or such third party purchaser, as the case may be,
for the repurchase of any Mortgage Loan transferred to FNMA, FHLMC or GNMA
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 FNMA, FHLMC, GNMA, the trustee or the
third party purchaser related to such deficiencies of the related Mortgage
Loans transferred to FNMA, FHLMC, GNMA, the trustee or other such third party
purchaser.
The Owner shall repurchase from the Servicer any Mortgage Loan
transferred to FNMA, FHLMC or GNMA 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 with respect to which the Servicer has been
required by FNMA, FHLMC, GNMA, the trustee or such third party purchaser to
repurchase due to a breach of a representation or warranty made by the Owner
with respect to the Mortgage Loans, or the servicing thereof prior to the
related Transfer Date to FNMA, FHLMC, GNMA, the trustee or any third party
purchaser in any Reconstitution Agreement and not due to a breach of the
Servicer's obligations thereunder 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 FNMA, FHLMC, GNMA, 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 FNMA, FHLMC, GNMA, 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 FNMA, FHLMC, GNMA, 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 7.06. Termination Fees after Reconstitution.
In the event that the Servicer acquires the Servicing Rights
pursuant to Section 7.01 hereof, the Servicer shall be entitled to the
Reconstituted Termination Fee (as defined below) set forth in the applicable
Reconstitution Agreement. In all other cases, the Servicer and the Owner
hereby agree and acknowledge that the Owner is the sole owner of the
Servicing Rights. In the event that any Reconstitution Agreement provides
for a payment of a termination fee (a "Reconstituted Termination Fee") to the
Servicer upon the termination of the Servicer as the servicer or as the
applicable "seller/servicer" thereunder, the Servicer shall (a) notify the
Owner, in writing, upon receipt of notice that the Servicer will be
terminated as servicer or "seller/servicer" under such Reconstitution
Agreement, and (b) promptly remit to the Owner by wire transfer of
immediately available funds the amount of the related Reconstituted
Termination Fee if it is received by the Servicer. Upon receipt by the Owner
of the Reconstituted Termination Fee, the Owner shall remit to the Servicer,
within 10 Business Days, the applicable Termination Fee due to the Servicer,
if any, pursuant to Section 9.02 hereof. In addition, the Servicer shall not
modify, amend or waive the right to receive a Reconstituted Termination Fee
under any Reconstitution Agreement without first obtaining the written
consent of the Owner which consent may be withheld by the Owner in its sole
discretion. The provisions of this Section 7.06 shall survive the
termination of this Agreement.
Section 7.07. Additional Remittance.
From the applicable Reconstituted Servicing Fee, the Servicer shall
retain an amount equal to the Servicing Fee and shall remit the Additional
Remittance to the Owner on the Additional Remittance Date. In connection
therewith, the Owner and the Servicer shall agree upon a mutually acceptable
monthly report to be sent to the Owner or its assigns thereof on or prior to
the related Additional Remittance Date. The right to receive the Additional
Remittance shall be freely transferable by the Owner and shall be secured by
a collateral pledge of the servicing rights associated with the Mortgage
Loans being reconstituted.
On each Reconstitution Date, the Owner and the Servicer hereby
agree to execute a Collateral Pledge and Security Agreement in form and
substance reasonably acceptable to both the Owner and the Servicer and such
other agreements and UCC-1's as shall reasonably be required to perfect the
Owner's security interest with respect to the servicing rights related to the
Mortgage Loans being reconstituted.
With respect to the Mortgage Loans subject to one or more Agency
Transfers, Whole Loan Transfers or Pass-Through Transfers, in the event that
any party to the Reconstitution Agreement other than the Owner disapproves or
terminates the Servicer and selects another servicer to replace the Servicer,
then from and after the date of substitution, neither the Servicer nor any
successor servicer hereunder shall be under any obligation to remit to the
Owner or its assigns any Additional Remittance accruing after the date of
substitution. Notwithstanding the foregoing, in the event that the Servicer
is terminated without cause under any Reconstitution Agreement, the Owner
shall be entitled to receive the sum of all fees, amounts or compensation
received by the Servicer under the applicable Reconstitution Agreement in
connection with a termination without cause. Additionally, in the event that
the Servicer is terminated as a consequence of a breach under any applicable
Reconstitution Agreement, the Servicer shall be liable to the Owner for any
actual and consequential damages which the Owner may sustain as a consequence
of any such termination; provided, however, that the Servicer shall not be
obligated to pay such damages to the Owner if the Servicer's termination is
directly related to the quality or suitability of the Mortgage Loans subject
to any Reconstitution Agreement. In the event that the Servicer judicially
contests any termination under a Reconstitution Agreement as a wrongful
termination thereunder, the Servicer shall not be obligated to pay damages to
the Owner until such time as a judicial determination on such claim is made,
provided that the Servicer shall diligently pursue such claim. In the event
that the Servicer continues to receive its Servicing Fee under a
Reconstitution Agreement during the time in which it is contesting a
termination as wrongful, the Servicer shall continue to be obligated to pay
the Additional Remittance to the Owner. Notwithstanding the fact that the
Servicer's obligation to pay damages if it contests a termination under a
Reconstitution Agreement as wrongful shall be delayed until a judicial
determination is made, such damages will nevertheless accrue as of the date
of termination.
Section 7.08. Transfer of Servicing Following Reconstitution.
Following a reconstitution of Mortgage Loans or REO Properties, the
Owner shall have the right, in its sole discretion, to cause the Servicer at
any time under any Reconstitution Agreement to transfer the servicing
responsibilities and duties associated therewith to the Owner or any designee
of the Owner; provided, however, that (i) the Owner shall provide the
Servicer with 30 days prior written notice, (ii) such transfer shall be
subject to the approval of the Applicable Agency, trustee, master servicer or
rating agency with respect to Agency Transfers, Pass-Through Transfers or any
relevant third party purchaser with respect to Whole Loan Transfers, (iii)
the costs associated with the transfer of servicing pursuant to this Section
7.08 shall not be borne by the Servicer and (iv) the Servicer shall be
entitled to the Termination Fee as set forth in Section 9.02. The Servicer
agrees to cooperate with the Owner in such transfer of servicing
responsibilities and shall comply with the termination procedures set forth
in Sections 9.01 and 10.01 hereof.
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 entity 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 FNMA-, FHLMC-, and GNMA-approved servicer in good standing and an
FHA approved Mortgagee and a VA Approved Lender.
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 strict 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 of this Agreement and the rights and
duties of the parties hereto. In such event, the Servicer shall be entitled
to reimbursement from the Owner for the reasonable legal expenses and costs
of such action.
Section 8.03 Limitation on Resignation and Assignment by the Servicer.
The Owner has entered into this Agreement with the Servicer and
subsequent transferees of the Owner 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 not assign this Agreement
or the servicing responsibilities hereunder or delegate its rights or duties
hereunder or any portion hereof 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 sole
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 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.
(a) 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:
(i) 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 two Business 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
(ii) 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; or
(iii) failure by the Servicer to maintain its license to do
business or service residential mortgage loans in any jurisdiction where the
Mortgaged Properties are located; or
(iv) 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
(v) 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
(vi) 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
(vii) the Servicer ceases to meet the qualifications of a FNMA,
FHLMC or GNMA lender/servicer or ceases to be an FHA Approved Mortgagee or
ceases to be a VA Approved Lender; or
(viii) the Servicer attempts, without the consent of the Owner,
to assign the servicing of the Mortgage Loans or 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; or
(ix) the Company fails to maintain a minimum net worth of
$25,000,000.
In each and every such case, so long as an event of default shall
not have been remedied, in addition to whatever 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. 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
Sections 9.01 and 10.01 hereof. In the event that Servicer is terminated as
servicer pursuant Sections 7.06, 7.08 and 9.02(ii), it shall be entitled to a
termination fee (the "Termination Fee") equal to $10 per Mortgage Loan then
being serviced pursuant to this Agreement.
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,
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.
Any successor to the Servicer shall be an FHA Approved Mortgagee and a VA
Approved Lender. In addition, with respect to all FHA Loans serviced
hereunder, the Servicer shall provide notice of such change in servicers to
HUD on HUD form 92080 or such other form as prescribed by HUD, at least 10
days prior to such transfer of servicing. 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 7.02, it being
understood and agreed that the provisions of such Sections 6.01, 6.02 and
7.02 shall be applicable to the Servicer notwithstanding any such resignation
or termination of the Servicer, or the termination of this Agreement.
Within a reasonable period of time, but in no event longer than 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, 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 10.06.
Section 10.02. Closing.
Each closing for the engagement of the Servicer to perform the
servicing responsibilities respecting Mortgage Loans shall take place on the
related Transfer 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.
Each 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 each Transfer Date and no event shall have
occurred 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, (i) with
respect to the Initial Transfer Date, all Closing
Documents as specified in Section 10.03 hereof, and
(ii) with respect to all Transfer Dates, the Closing
Documents specified in (b), (c) and (i) of Section
10.03 hereof, in such forms as are agreed upon and
acceptable to the Servicer and the Owner, duly executed
by all signatories as required pursuant to the respective
terms thereof; and
c) 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 for a period of 30 days or more prior to the
related Transfer Date.
Section 10.03. Closing Documents.
The Closing Documents shall consist of fully executed originals of
the following documents:
(a) with respect to the Initial Transfer Date, this
Agreement;
(b) with respect to the Initial Transfer Date, the Mortgage
Loan Schedule, with one copy to be attached to each
counterpart of this Agreement as Exhibit A, and with
respect to each subsequent Transfer Date, a Mortgage Loan
Schedule reflecting the additional Mortgage Loans to be
serviced by the Servicer and a cumulative Mortgage Loan
Schedule, reflecting all Mortgage Loans being serviced by
the Servicer from the Initial Transfer Date up to, and
including, the related subsequent Transfer Date;
(c) with respect to each subsequent Transfer Date, an
Acknowledgment Agreement in the form of Exhibit B-1
hereto;
(d) with respect to the Initial Transfer Date, a Custodial
Account Letter Agreement in the form of Exhibit C hereto;
(e) with respect to the Initial Transfer Date, an Escrow
Account Letter Agreement in the form of Exhibit D hereto;
(f) with respect to the Initial Transfer Date, an Officer's
Certificate of the Servicer, in the form of Exhibit E-1
hereto, including all attachments thereto, and with
respect to subsequent Transfer Dates, in the event that
any item contained in the most recent Officer's
Certificate becomes untrue or at the request of the
Owner, an Officer's Certificate in the form of Exhibit ▇-
▇ hereto, including all attachments thereto;
(g) an Opinion of Counsel delivered following the Initial
Transfer Date upon the request of the Owner, in the form
of Exhibit G hereto;
(h) with respect to the Initial Transfer Date, a Custodial
Agreement; and
(i) with respect to each Transfer Date, a trust receipt and
initial certification of the related Custodian, as
required under the Custodial Agreement.
Section 10.04. Costs.
The Owner shall pay any commissions due its salesmen and the legal
fees and expenses of its attorneys. Costs and expenses incurred in
connection with the transfer of the servicing responsibilities, including
fees for delivering Servicing Files, shall be paid by the Owner. Subject to
Section 3.01(a) the Owner, its designee or the Servicer shall pay the costs
associated with the preparation, delivery and recording of Assignments of
Mortgages required on each Reconstitution Date.
Section 10.05. Protection of Confidential Information.
The Servicer shall keep confidential and shall not divulge to any
party, without the Owner's prior written consent, the purchase price paid by
the Owner for the Mortgage Loans and 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 10.06. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if sent by facsimile or
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:
▇▇▇▇▇▇ Capital, A Division of
▇▇▇▇▇▇ Brothers Holdings Inc.
Three World Financial Center
New York, New York 10285
Attention: Manager, Contract Finance
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Servicer:
Aurora Loan Services Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
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 10.07. 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 10.08. No Personal Solicitation.
From and after each related Transfer 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
on the Servicer's behalf, to personally, by telephone or mail, solicit the
borrower or obligor under any Mortgage Loan (on a targeted basis) for any
purposes of prepayment, refinancing or modification of the related Mortgage
Loan, provided, however, that this limitation shall not prohibit Servicer
from soliciting such Mortgagor for purposes of prepayment, refinance or
modification of any loan owned or serviced by Servicer other than a Mortgage
Loan. It is understood and agreed that, among other marketing activities,
promotions undertaken by Servicer which are directed of the general public at
large or which are directed generally to a segment of the then existing
customers of Servicer or any of its direct or indirect subsidiaries
(including, without limitation, the mailing of promotional materials to
Servicer's deposit customers by inserting such materials into customer
account statements, mass mailings based on commercially acquired mailing
lists and newspaper, radio and television advertisements) shall not
constitute solicitation under this section. In the event the Servicer does
refinance any Mortgage Loan as a result of a violation of the requirements
set forth in this Section 10.08, Servicer hereby agrees to pay to Owner an
amount equal to the difference, if any, between the amount that the Owner
would have received if it had sold the Mortgage Loan to a third party, and
the proceeds received by the Owner as result of such refinancing.
Section 10.09. 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 10.10. 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 10.11. 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 10.12. 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 10.13. Successors and Assigns; Assignment of Servicing
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 10.14. 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 10.15. Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
Section 10.16. 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 10.17. 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.
▇▇▇▇▇▇ CAPITAL, A DIVISION OF
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
(Owner)
By:
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Name:
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Title:
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AURORA LOAN SERVICES INC.
(Servicer)
By:
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Name:
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Title:
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