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SERVICING RIGHTS TRANSFER AGREEMENT
by and between
OCWEN FEDERAL BANK FSB
(Purchaser)
and
AMERICAN BUSINESS CREDIT, INC.
(Seller)
Dated as of March 1, 2005
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINED TERMS
ARTICLE II
TRANSFER AND CONVEYANCE OF SERVICING RIGHTS
Section 2.01 Agreement to Transfer the Servicing Rights.....................................................10
Section 2.02 Purchase Price.................................................................................10
Section 2.03 Conditions to Purchaser's Obligations..........................................................11
Section 2.04 Conditions to Seller's Obligations.............................................................13
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations, Warranties and Covenants of the Seller........................................13
Section 3.02 Representations, Warranties and Covenants of the Purchaser.....................................16
ARTICLE IV
SERVICING TRANSFER PROCEDURES
Section 4.01 Servicing Transfer Date........................................................................18
Section 4.02 Notice Letters of Transfer.....................................................................20
Section 4.03 Statements.....................................................................................21
Section 4.04 Payments and Notices Received After the Servicing Transfer Date................................21
Section 4.05 Service Bureau Cooperation.....................................................................21
Section 4.06 Missing Social Security Number; Forms W-8 or W-9...............................................22
Section 4.07 Access to Information..........................................................................22
Section 4.08 Transfer Expenses..............................................................................22
ARTICLE V
ADDITIONAL AGREEMENTS
Section 5.01 Mortgage Loan Repurchases......................................................................23
Section 5.02 Annual Statement as to Compliance..............................................................23
Section 5.03 Bankruptcy Court Approval Proceedings..........................................................23
Section 5.04 Nonsolicitation................................................................................23
Section 5.05 Prepayment Penalties...........................................................................24
Section 5.06 Clean-up Call Rights...........................................................................24
Section 5.07 Information; Reports...........................................................................25
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Section 5.08 Ongoing Inducement Fee.........................................................................25
Section 5.09 Bidding Procedures.............................................................................25
Section 5.10 Indemnification................................................................................25
Section 5.11 Calculating Agent Responsibilities.............................................................26
Section 5.12 Transition Services to be Provided by the Seller...............................................26
ARTICLE VI
TERMINATION
Section 6.01 Termination....................................................................................26
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 Amendment......................................................................................28
Section 7.02 Governing Law..................................................................................28
Section 7.03 Waiver of Trial by Jury........................................................................28
Section 7.04 Limitation of Damages..........................................................................28
Section 7.05 Notices........................................................................................29
Section 7.06 Exhibits.......................................................................................29
Section 7.07 Headings.......................................................................................30
Section 7.08 Severability of Provisions.....................................................................30
Section 7.09 General Interpretive Principles................................................................30
Section 7.10 Reproduction of Documents......................................................................30
Section 7.11 Counterparts...................................................................................31
Section 7.12 Entire Agreement, Successors and Assigns.......................................................31
Section 7.13 Brokerage Commissions..........................................................................31
Section 7.14 Further Assurances.............................................................................31
Section 7.15 Survival.......................................................................................31
EXHIBIT 8
SCHEDULES
Schedule A Mortgage Loan Schedule
EXHIBITS
Exhibit 1 List of Relevant ABFS Securitization Transactions
Exhibit 2 Forms of Amended and Restated Securitization Agreements
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Exhibit 3 Contents of Mortgage File
Exhibit 4 Form of Opinion of Counsel to the Seller relating to Amendments and Securitization Agreements
Exhibit 5 List of Securitization Agreements and Custodial Agreements (as amended)
Exhibit 6 Form of Securities Insurer Consent and Forbearance Agreement
Exhibit 7 Form of Trustee Consent and Forbearance Agreement
Exhibit 8 Form of Assignment and Conveyance
Exhibit 9 Seller Litigation Schedule
Exhibit 10 Document Deficiencies
Exhibit 11 Data Elements
Exhibit 12 Servicing Transfer Procedures
Exhibit 13 Tax Service Contract Providers
Exhibit 14 Form of Sale Procedures Order
Exhibit 15 Form of Sale Order
Exhibit 16 Pricing Information
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SERVICING RIGHTS TRANSFER AGREEMENT
This SERVICING RIGHTS TRANSFER AGREEMENT (this "AGREEMENT") is made as
of March 1, 2005 and is executed by and between AMERICAN BUSINESS CREDIT, INC.,
a Pennsylvania corporation (the "SELLER"), and OCWEN FEDERAL BANK FSB, a
federally chartered savings bank (the "PURCHASER").
RECITALS
WHEREAS, the Seller, in connection with various mortgage loan
securitizations, has entered into certain Securitization Agreements (as defined
herein) pursuant to which or relating to transactions in which mortgage-backed
bonds or securities were issued (collectively, the "SECURITIES");
WHEREAS, the Seller currently acts as "Servicer" under each of the
Securitization Agreements and, in that capacity, services the mortgage loans
that were securitized under the Securitization Agreements and all related
properties that were acquired in foreclosure or similar action (all such
mortgage loans and properties are collectively referred to as the "MORTGAGE
LOANS");
WHEREAS, the Seller owns all Servicing Rights (as defined herein) with
respect to the Mortgage Loans, subject to the terms of the Securitization
Agreements and, if applicable, certain insurance and indemnity agreements under
which certain insurers (the "SECURITIES INSURERS") agreed to issue financial
guaranty insurance policies guarantying certain distributions on the Securities
(collectively, the "INSURANCE AGREEMENTS");
WHEREAS, on January 21, 2005 and January 24, 2005, American Business
Financial Services, Inc. and certain of its subsidiaries, including the Seller,
filed voluntary petitions for relief under Chapter 11 of the United States
Bankruptcy Code (the "BANKRUPTCY CODE") in the United States Bankruptcy Court
for the District of Delaware (the "BANKRUPTCY COURT"), which cases are being
administered jointly under Case No. 05-10203 (MFW);
WHEREAS, the Seller desires to transfer the Servicing Rights, and the
Purchaser desires to be appointed as the "Servicer" under the Securitization
Agreements and to acquire and assume the Servicing Rights and related
obligations to the extent hereinafter provided and in accordance with the Sale
Procedures Order, including the Bidding Procedures, which Servicing Rights will
be assumed and assigned pursuant to Section 365 of the Bankruptcy Code and
following such transfer, the Purchaser shall be obligated to service the
Mortgage Loans in accordance with the terms and conditions of the Securitization
Agreements, as amended and restated;
WHEREAS, the Seller has made certain Advances (as defined herein) that
are Unrecovered Advances (as defined herein), the Seller desires to sell, and
the Purchaser desires to purchase, free and clear of all liens, claims,
encumbrances, defenses, and rights of set-off and recoupment, and otherwise in
accordance with the terms and conditions of this Agreement, the Advance
Receivables (as defined herein) relating to such Unrecovered Advances;
WHEREAS, the transfer of the Servicing Rights and the Advance
Receivables relating to such Unrecovered Advances are subject to the approval of
the Bankruptcy Court; and
WHEREAS, the transactions contemplated by this Agreement will be
implemented through the filing of a motion seeking the entry of orders by the
Bankruptcy Court approving this Agreement and authorizing the assumption and
assignment of the servicing-related provisions of the Securitization Agreements
constituting the Servicing Rights pursuant to Section 365 of the Bankruptcy Code
and the Advance Receivables relating to the Unrecovered Advances pursuant to
Section 363(b) and Section 363(f) of the Bankruptcy Code in accordance with the
terms of this Agreement.
AGREEMENT
In consideration of the mutual agreements hereinafter set forth, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Seller and the Purchaser agree as follows:
ARTICLE I
DEFINED TERMS
Whenever used in this Agreement, the following words and phrases shall
have the following meanings specified in this Article:
"ABFS": American Business Financial Services, Inc., a Delaware
corporation, or any successor in interest thereto.
"Advance": Any Delinquency Advance or Servicing Advance.
"Advance Receivables": With respect to each Mortgage Loan, the related
contract rights under the related Securitization Agreements to be reimbursed for
Advances made by the Seller as servicer thereunder (to the extent not previously
reimbursed for such Advances), the aggregate amounts of which with respect to
each Pool (as of January 31, 2005) are as set forth on EXHIBIT 16 attached
hereto and are subject to adjustment as of the Closing Date.
"Advance Reimbursement Amount": An amount equal to the total amount of
Advance Receivables that are Unrecovered Advances as of the Advance
Reimbursement Determination Date.
"Advance Reimbursement Determination Date": The Business Day prior to
the Closing Date.
"Agreement": This Servicing Rights Transfer Agreement, including all
schedules, exhibits and supplements hereto and amendments hereof.
"Amended and Restated Securitization Agreements": The forms of amended
and restated Securitization Agreements attached hereto as EXHIBIT 2.
"Ancillary Income": All release fees, late payment charges (to the
extent provided herein), assumption fees, insufficient fund charges, float and
other similar fees (other than Prepayment Penalties), in each case, to the
extent payable to the servicer under the applicable Securitization Agreement.
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"Assignment and Conveyance": An Assignment and Conveyance, executed by
the Seller, substantially in the form attached hereto as EXHIBIT 8.
"Assignment of Mortgage": An assignment of a Mortgage, notice of
transfer or equivalent instrument, in form acceptable for recording and
sufficient under the laws of the jurisdiction wherein the Mortgaged Property is
located to reflect of record the transfer of the Mortgage.
"Bankruptcy Case": That certain jointly administered proceeding of ABFS
and certain of its subsidiaries, including the Seller, under the Bankruptcy Code
in the Bankruptcy Court (Case No. 05-10203(MFW)).
"Bankruptcy Code": As defined in the Recitals.
"Bankruptcy Court": As defined in the Recitals.
"Base Inducement Fee": An amount equal to $6,988,000.
"Bidding Procedures": The bidding procedures with respect to the
transfer by the Seller of the Servicing Rights, as attached to the Sale
Procedures Order as Exhibit 1.
"Borrower": The individual(s) obligated to repay a Mortgage Loan.
"Break-up Fee": The amount payable by the Seller to the Purchaser
pursuant to Section 6.01(c), projected to be approximately $595,374 (based on
the amount of Advance Receivables as of January 31, 2005 set forth in EXHIBIT 16
and the maximum expense cap of $200,000), subject to adjustment on the date of
determination to reflect outstanding Advance Receivables and calculated as the
sum of (i) the product of (A) two percent (2.0%) and (B) the difference of (1)
the aggregate amount of Advance Receivables outstanding as of the date of
determination of the Break-up Fee and (2) the Inducement Fee and (ii) actual
out-of-pocket fees and expenses (including attorneys' fees) incurred by or on
behalf of the Purchaser, not to exceed $200,000, in connection with the
negotiation and preparation of this Agreement and the transactions contemplated
by this Agreement.
"Business Day": A day of the week other than (a) Saturday or Sunday or
(b) a day on which banking or savings institutions in the States of New York or
New Jersey or the state of incorporation or principal business location of the
Seller or of the Purchaser are authorized or permitted under applicable law to
be closed.
"Calculating Agent Responsibilities": The responsibilities of the
servicer, if any, under the Securitization Agreements to make the calculations
relating to payments to be made each month on the Securities, to report
information relating to such Securities, and to perform other similar security
administration duties under the Securitization Agreements (but not including any
REMIC reporting or administrative services).
"Closing Date": May 2, 2005.
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"Collection Account": An account or accounts maintained by the Seller
for the deposit of principal and interest payments received in respect of one or
more Mortgage Loans in accordance with the related Securitization Agreement,
whether designated as a principal and interest account, collection account,
custodial account or otherwise.
"Custodial File": With respect to an individual Mortgage Loan, the
Mortgage Loan documents required to be held by a Custodian pursuant to the terms
of the related Securitization Agreement or a separate custodial agreement.
"Custodian": An entity, which may be the Trustee, acting as Mortgage
Loan document custodian pursuant to the terms of the related Securitization
Agreement or a separate custodial agreement to the extent listed on EXHIBIT 5.
"Data Elements": The information with respect to the Mortgage Loans for
each of the fields listed in EXHIBIT 11 attached hereto.
"Delinquency Advance": Any amount advanced in accordance with the terms
of a Securitization Agreement in connection with delinquent Monthly Payments and
reimbursable in accordance with the related Servicing Requirements.
"DIP Loan Order": The final order of the Bankruptcy Court authorizing
ABFS and certain of its subsidiaries to obtain debtor-in-possession financing in
connection with the Bankruptcy Case.
"EDP": Electronic data processing.
"Escrow Account": Each account, if any, maintained by the Seller
pursuant to the terms of a Securitization Agreement for the deposit of Escrow
Payments received in respect of one or more Mortgage Loans in accordance with
the related Servicing Requirements.
"Escrow Payments": The amounts constituting ground rents, taxes,
assessments, water rates, common charges in condominiums and planned unit
developments, mortgage insurance premiums, fire and hazard insurance premiums
and other payments which have been escrowed by the Borrower with the related
mortgagee pursuant to any Mortgage Loan.
"FHLMC": The Federal Home Loan Mortgage Corporation or any successor.
"Final Order": An order of the Bankruptcy Court (i) as to which the time
to appeal or move to reconsider or modify such order shall have expired and as
to which no appeal or motion to reconsider or modify such order, shall then be
pending, or (ii) if an appeal or motion to reconsider or modify such order shall
have been filed or sought, either (A) no stay of the order shall be in effect or
(B) if such a stay shall have been granted by the Bankruptcy Court, then (1) the
stay shall have been dissolved or (2) if an appeal has been filed, a final order
of the district court having jurisdiction to hear such appeal shall have
affirmed the order of the Bankruptcy Court and the time allowed to appeal from
such affirmance or to seek review or rehearing thereof shall have expired and
the taking or granting of any further hearing, appeal or petition for certiorari
shall not be permissible, and if a timely appeal of such district court order or
timely motion to seek review or rehearing of such order shall have been made,
any court of appeals
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having jurisdiction to hear such appeal or motion (or any subsequent appeal or
motion to seek review or rehearing) shall have affirmed the district court's (or
lower appellate court's) order upholding the order of the Bankruptcy Court and
the time allowed to appeal from such affirmance or to seek review or rehearing
thereof shall have expired and the taking or granting of any further hearing,
appeal or petition for certiorari shall not be permissible.
"FNMA": ▇▇▇▇▇▇ ▇▇▇ or any successor.
"Inducement Fee": The fee payable by the Seller to the Purchaser in
consideration of the Purchaser accepting the Servicing Rights, which fee shall
be an amount equal to the Base Inducement Fee, as such fee may be modified in
accordance with Section 2.02 hereof.
"Insurance Policy": All of the Seller's right, title and interest under
any of the hazard insurance, title insurance and credit life insurance policies
and certificates related to such Mortgage Loan. References in this Agreement to
hazard insurance shall be construed to include flood insurance to the extent
that flood insurance is required of a Mortgage Loan pursuant to the Servicing
Requirements.
"Major Consent Letters": Each of the Securities Insurer Consent and
Forbearance Agreements, Rating Agency Letters and Trustee Consent and
Forbearance Agreements; PROVIDED, HOWEVER, that if the applicable Securitization
Agreement does not require any Rating Agency Letters in order to effect the
transfer of the Servicing Rights to the Purchaser or the amendments to the
related Securitization Agreement, then "Major Consent Letters" will not include
any Rating Agency Letters except, in the case of the uninsured Securitization
Agreements, if requested by the related Trustee.
"Material Adverse Effect": A material adverse effect upon the Servicing
Rights, the consummation of the transactions and performance of obligations
contemplated by this Agreement or the financial condition of the Purchaser.
"Monthly Payment": The scheduled monthly payment of principal and
interest on a Mortgage Loan.
"Mortgage": The mortgage, deed of trust or other instrument creating a
first or junior lien on real property securing the Mortgage Note.
"Mortgage File": The documents pertaining to a particular Mortgage Loan
that are specified on EXHIBIT 3 hereto.
"Mortgage Loan": An individual mortgage loan or any related mortgaged
property that was acquired in foreclosure or similar action which is subject to
this Agreement and a Securitization Agreement and identified on the Mortgage
Loan Schedule.
"Mortgage Loan Schedule": The schedule of Mortgage Loans arranged by
Pool and attached hereto as SCHEDULE A (and adjusted as of the Closing Date to
reflect the outstanding Mortgage Loans in each Pool), which schedule shall set
forth, as of the date specified in such schedule, each of the Data Elements, and
the following information for each Mortgage Loan:
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(i) the loan number and investor code;
(ii) the outstanding principal balance;
(iii) the last due date with respect to which interest has
been paid;
(iv) the note rate;
(v) maturity date;
(vi) property location, by state;
(vii) a code indicating the Securitization Agreement pursuant
to which the Mortgage Loan is serviced; and
(viii) the Servicing Fee under the Securitization Agreement.
"Mortgage Note": The note or other evidence of the indebtedness of a
Borrower secured by a Mortgage.
"Mortgaged Property": The underlying real property securing repayment of
a Mortgage Note.
"Ongoing Inducement Calculation Date": November 1, 2005, May 1, 2006,
and semi-annually thereafter, on each of November 1 and May 1.
"Ongoing Inducement Fee": [__]%of the amount actually paid (excluding
any amounts paid as a result of the release of any overcollateralization
amounts) to the holders of the Retained Certificates on each of the Payment
Dates which have occurred since the last Ongoing Inducement Calculation Date, or
in the case of November 1, 2005, since May 1, 2005.
"Payment Date": The date on which payments are generally made to the
holders of Securities under the applicable Securitization Agreements
"Performance Goal": On any Ongoing Inducement Calculation Date the
Performance Goal shall have been met if on each of the Payment Dates since the
last Ongoing Inducement Calculation Date (or in the case of November 1, 2005,
since May 1, 2005), amounts were actually paid to the holders of at least [__]%
of the applicable Retained Certificates for such respective Payment Date.
"Pool": With respect to a Securitization Agreement, all of the Mortgage
Loans subject to such Securitization Agreement.
"Prepayment Penalty": With respect to each Mortgage Loan, if applicable,
the penalty or premium to be paid by the related Borrower if such Borrower
prepays, either in whole or part, such Mortgage Loan, as provided in the related
Mortgage Loan documents.
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"Purchase Price": $19,768,678, which shall be payable by the Purchaser
to the Seller with respect to the Servicing Rights and the Unrecovered Advances
and equals the amount by which the Advance Reimbursement Amount (assuming that
all Advance Receivables set forth in EXHIBIT 16 represent Advances that are
Unrecovered Advances) exceeds the Inducement Fee (assuming that the Inducement
Fee is equal to the Base Inducement Fee), subject to adjustment on the Closing
Date in accordance with Section 2.02.
"Purchaser": Ocwen Federal Bank FSB, a federally chartered savings bank,
or any successor in interest thereto.
"Rating Agency": For any Pool and related series of Securities, as
defined in the related Securitization Agreement.
"Rating Agency Letters": With respect to each Securitization Agreement
to the extent required under the definition of "Major Consent Letters," a letter
from each Rating Agency rating Securities relating to such Securitization
Agreement confirming that (i) the appointment of the Purchaser as the servicer
under such Securitization Agreement and (ii) the amendment and restatement of
such Securitization Agreement in connection with such appointment as
substantially reflected in the form of the Amended and Restated Securitization
Agreement shall not result in a downgrade of the ratings on the related
Securities which such Rating Agency would have issued if the servicing transfer
and amendments contemplated hereby would not have occurred and which otherwise
satisfies the requirements of such Securitization Agreement.
"Remittance Date": With respect to each Securitization Agreement, the
date each month on which the servicer is required pursuant to such
Securitization Agreement to direct the deposit of monthly collections and
related amounts with respect to the Mortgage Loans from the related Collection
Account into the related distribution account, in each case held in the name of
the related Trustee.
"RESPA": The Real Estate Settlement Procedures Act, as amended from time
to time.
"Retained Certificate": Any Class X Certificate, Trust Certificate,
Class R Certificate or other residual certificate issued in accordance with any
of the transactions contemplated by the Securitization Agreements.
"Sale Order": The order of the Bankruptcy Court approving this Agreement
and the sale and transfer of the Servicing Rights (and related obligations) and
Advance Receivables contemplated hereunder, substantially in the form of EXHIBIT
15 hereto.
"Sale Procedures Order": The order of the Bankruptcy Court, in a form
acceptable to the parties hereto, substantially in the form of EXHIBIT 14
hereto.
"Securities": As defined in the Recitals.
"Securities Insurance Policy": With respect to each Securitization
Agreement as to which any of the Securities issued in connection therewith are
subject to financial guaranty insurance, the policy issued by the related
Securities Insurer pursuant to which such insurance is provided.
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"Securities Insurer": With respect to each Securitization Agreement as
to which any of the certificates issued thereunder are subject to a Securities
Insurance Policy, the related issuer of such Securities Insurance Policy, as set
forth in the related Securitization Agreement and in EXHIBIT 1 hereto.
"Securities Insurer Consent and Forbearance Agreements": With respect to
each Securitization Agreement as to which any of the Securities issued in
connection therewith are subject to a Securities Insurance Policy, a letter or
letters from the related Securities Insurer sufficient to satisfy the
requirements, if any, of such Securitization Agreement (1) in which such
Securities Insurer consents to the appointment of the Purchaser as the successor
Servicer to the Seller under the Securitization Agreement and (2) in which such
Securities Insurer waives any servicer default with respect to the Seller under
such Securitization Agreement existing (whether or not discovered) as of the
Closing Date and agrees not to pursue any remedy against the Purchaser that
might otherwise be pursued as a result of any such servicer default existing
(whether or not discovered) as of the Closing Date, which shall be in
substantially the form of EXHIBIT 6 attached hereto; PROVIDED, HOWEVER, that
such forbearance shall not preclude a Securities Insurer from separately
pursuing an action against the Seller for any servicer default with respect to
the Seller.
"Securitization Agreement": Each of the Pooling and Servicing Agreements
and Sale and Servicing Agreements identified on EXHIBIT 5 hereto and any related
agreements pursuant to which the Mortgage Loans are serviced, in each case, as
such agreements are amended and restated.
"Seller": American Business Credit, Inc., a Pennsylvania corporation, or
any successor in interest thereto.
"Servicing Advances": Any amounts advanced, other than Delinquency
Advances, in accordance with the terms of a Securitization Agreement in
connection with the payment of taxes, insurance, protective expenses or
otherwise made with respect to a Mortgage Loan and reimbursable in accordance
with the related Servicing Requirements.
"Servicing Fee": With respect to each Mortgage Loan, the monthly
servicing fee payable to the Seller, and to be payable to the Purchaser, under
the Securitization Agreement related to such Mortgage Loan, as consideration for
servicing the Mortgage Loan, which fee is specified on the Mortgage Loan
Schedule and in the related Securitization Agreement.
"Servicing Requirements": With respect to each Mortgage Loan, the
applicable provisions of the related Securitization Agreement with respect to
the servicing, control and administration of such Mortgage Loan.
"Servicing Rights": All of the Seller's right, title and interest in and
to the servicing of the Mortgage Loans, including all rights under each
applicable Securitization Agreement to receive or retain amounts in respect of
Servicing Fees, Ancillary Income, reimbursement for Advances, or other expenses
and costs, and investment earnings or other benefits from positive account
balances, together with all Collection Account balances, Escrow Account
balances, contract rights, incidental income and benefits to the extent payable
to the Seller, and exclusive
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rights to possession and use of servicing files, servicing documents, servicing
records, data tapes, computer records and other information directly or
indirectly related thereto, including, without limitation, Insurance Policies
and tax service agreements and including the right to exercise any clean-up call
or redemption rights and all other rights pertaining to the past, present or
prospective servicing of the Mortgage Loans, all as provided under the
Securitization Agreements, subject in each case to the rights of any applicable
Trustee, Securities Insurer or other party specified in any Securitization
Agreement; PROVIDED, HOWEVER, that the term Servicing Rights shall not include
any obligations of the Seller as depositor or seller under any Securitization
Agreement, including, but not limited to, any obligations in connection with any
representations or warranties made by the Seller as depositor or seller or any
obligation to remedy breaches of any representations or warranties or to
indemnify any party in connection therewith or any other recourse obligation of
the Seller in its capacity as depositor or seller thereunder; and PROVIDED,
FURTHER, that the term Servicing Rights shall not in any event include any
obligation to provide REMIC reporting or administration services under any
applicable Securitization Agreement.
"Servicing Transfer Date": May 1, 2005, effective as of 11:59 p.m.,
April 30, 2005.
"Servicing Transfer Procedures": The servicing transfer procedures of
the Purchaser, attached hereto as EXHIBIT 12.
"Treasury Department": The United States Department of the Treasury.
"Trustee": With respect to each Securitization Agreement, the entity
serving as the trustee for the holders of the Securities relating to such
Securitization Agreement as identified therein and on EXHIBIT 5 attached hereto,
or any successor trustee thereunder.
"Trustee Consent and Forbearance Agreements": With respect to each
Securitization Agreement, a letter or letters in substantially the form of
EXHIBIT 7 attached hereto, sufficient to satisfy the requirements, if any, of
such Securitization Agreement (1) in which the Trustee consents to such
appointment of the Purchaser as servicer and which agreement does not reduce or
limit the rights or compensation of the servicer under the applicable
Securitization Agreement or impose unduly burdensome requirements on the
Purchaser, and (2) in which the related Trustee waives any existing default
under such Securitization Agreement by the Seller and agrees not to pursue any
remedy that might otherwise be pursued as a result of any such existing default;
PROVIDED, HOWEVER, that such forbearance shall not preclude a Trustee from
separately pursuing an action against the Seller for any servicer default with
respect to the Seller.
"Unrecovered Advances": Those Advances made by or on behalf of the
Seller for which the Seller or any other party has not been reimbursed and for
which the Seller is entitled to reimbursement pursuant to the Securitization
Agreements, which have been documented in sufficient detail so as to allow the
Purchaser to determine the date and nature of each such Advance, and which
Advances are free and clear of any lien and were not made by the Seller through
borrowings from the related Collection Account.
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ARTICLE II
TRANSFER AND CONVEYANCE OF SERVICING RIGHTS
Section 2.01 AGREEMENT TO TRANSFER THE SERVICING RIGHTS.
Subject to the terms and conditions set forth in this Agreement and the
Sale Order, the Seller shall transfer, assign, convey and set over to the
Purchaser as of the Closing Date, the Servicing Rights and its rights to
reimbursement with respect to the Unrecovered Advances, and the Purchaser shall
assume responsibility for servicing each Mortgage Loan in accordance with the
terms of each related Securitization Agreement. From and after the Closing Date,
the Purchaser shall have full power and authority, acting alone, to do any and
all things in connection with the servicing and administration of the Mortgage
Loans that the Purchaser may deem necessary or desirable, consistent with the
terms of this Agreement and the Servicing Requirements. On and after the Closing
Date, subject to Section 5.11, the Purchaser or its designee shall perform the
Calculating Agent Responsibilities pursuant to each applicable Securitization
Agreement; PROVIDED, HOWEVER, it is expressly understood and agreed that the
Purchaser shall not be required to perform REMIC reporting or administration
services required under any Securitization Agreement, and that none of the
duties or obligations attendant thereto are transferred or delegated to, or
assumed by, the Purchaser.
In connection with the transfer of the Servicing Rights to the Purchaser
and assumption of servicing obligations by the Purchaser, the Purchaser shall be
entitled to retain all Servicing Fees and Ancillary Income collected on or after
the Servicing Transfer Date as servicing compensation to the extent provided in
each Securitization Agreement; PROVIDED, HOWEVER, that the Seller shall be
entitled to late fees accrued prior to the Servicing Transfer Date on the
Mortgage Loans that are less than thirty (30) days delinquent as of the
Servicing Transfer Date, but solely to the extent such late fees are collected
within the first ninety (90) days following the Servicing Transfer Date. The
Purchaser shall remit any such late fees to the Seller no later than ten (10)
Business Days following the expiration of such 90-day period.
Section 2.02 PURCHASE PRICE.
(a) On the Closing Date, subject to the terms and conditions set
forth in this Agreement, the Purchaser shall pay to the Seller the Purchase
Price; PROVIDED, HOWEVER, the portion of the Purchase Price equal to 10% of the
Advance Reimbursement Amount shall be held in escrow by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
pursuant to an escrow agreement the terms of which shall be agreed to by each of
the Seller, the Purchaser and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, for the forty-five (45) day
period immediately following the Closing Date. Upon the expiration of such
45-day period, the escrow agent shall release to the Seller all such escrowed
funds; PROVIDED, HOWEVER, that the amounts released to the Seller shall be net
of any amounts attributable to (w) Advance Receivables for which the Seller has
not provided to the Purchaser the information necessary for the Purchaser to
determine that such Advance Receivables constitute Unrecovered Advances, (x) any
costs incurred or to be incurred by the Purchaser to obtain any Mortgage Files
(or portions of Mortgage Files) not otherwise delivered by the Seller with
respect to any Mortgage Loan or to correct any document deficiencies with regard
to the Mortgage Loan documents in any Mortgage File, (y) the costs incurred or
to be incurred by the Purchaser in connection with obtaining life-of-loan tax
service contracts with respect to any Mortgage Loans, as provided in Section
4.01, or
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(z) indemnifying the Purchaser for any actual costs, losses, expenses or damages
(including, without limitation, reasonable attorneys' fees) incurred in
connection with or arising out of a material breach by the Seller of any
representation, warranty or covenant herein that has not been cured within any
applicable cure period provided herein. All amounts held in escrow and not
disbursed to the Seller upon the expiration of such 45-day period pursuant to
the preceding sentence shall be released to the Purchaser and the Seller shall
no longer be entitled to such amounts.
(b) Notwithstanding any provision to the contrary, amounts held in
escrow pursuant to subsection (a) above shall be released to the Purchaser to
the extent of any out-of-pocket costs incurred by the Purchaser to acquire
life-of-loan tax service contracts with respect to any Mortgage Loans pursuant
to Section 4.01.
(c) In the event that the Servicing Transfer Date does not occur on
or before April 30, 2005 and this Agreement is not terminated under Section
6.01, the Inducement Fee payable by the Seller shall be modified as follows: The
Inducement Fee shall be increased by an amount equal to 2.50% of the Base
Inducement Fee for each calendar month following April 2005 until the Servicing
Transfer Date occurs. The Inducement Fee shall be increased on a per diem basis
(assuming 30-day months and a 360-day calendar year) based on the day of the
month on which the Servicing Transfer Date occurs.
(d) The Purchase Price shall be paid by the Purchaser by wire
transfer of immediately available funds to an account specified by the Seller in
writing.
(e) To the extent permitted by the applicable Securitization
Agreements, the Purchaser shall be entitled to retain the full amount of any
reimbursements or recoveries with respect to any Advances that are received
following the Servicing Transfer Date.
Section 2.03 CONDITIONS TO PURCHASER'S OBLIGATIONS.
The Purchaser's obligations to consummate its purchase of the Servicing
Rights and the Advance Receivables pursuant to this Agreement and otherwise
perform its obligations under this Agreement are subject to the satisfaction or
waiver of the following conditions on or prior to the date specified below or,
if not specified, on or prior to Closing Date:
(a) The Seller shall have performed in all material respects all of
its covenants and agreements contained herein which are required to be performed
by it;
(b) All of the representations and warranties of the Seller
contained in Section 3.01 of this Agreement shall be true and correct in all
material respects and no Material Adverse Effect shall have occurred with
respect to the Servicing Rights;
(c) The Purchaser shall have received in escrow, or the Purchaser's
attorneys shall have received in escrow, each of the documents specified in this
Section 2.03, duly executed by all signatories other than the Purchaser, as
required by the respective terms thereof;
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(d) The Purchaser shall have received copies of the Major Consent
Letters and all other authorizations and approvals required under the terms of
each Securitization Agreement, each in form and substance reasonably
satisfactory to the Purchaser;
(e) The Purchaser shall have received any and all other customary
documents as the Purchaser shall have reasonably determined to be necessary or
desirable to effectuate the intent and purposes of this Agreement and to
consummate the transactions contemplated hereby;
(f) The Securitization Agreements shall have been amended and
restated or otherwise modified to be in substantial conformity with the Amended
and Restated Securitization Agreement and shall have been consented to by the
related Securities Insurers and fully executed original copies of each amended
and restated Securitization Agreement shall have been provided to the Purchaser;
(g) The Seller shall have delivered to the Purchaser an Officer's
Certificate of the Seller certifying as to the validity and collectibility of
all Unrecovered Advances to be reimbursed hereunder;
(h) Servicing of the Mortgage Loans shall have been transferred to
the Purchaser by the Seller in accordance with the Servicing Transfer
Procedures, this Agreement and the Sale Procedures Order;
(i) Legal opinions, substantially in the form of EXHIBIT 4 hereto,
shall be delivered to the Purchaser, the Securities Insurers and the Trustees
from outside counsel to the Seller stating that the amendments and modifications
to the Securitization Agreements are permitted under the respective terms
thereof, do not (i) in the case of any Securitization Agreements pursuant to
which a REMIC election has been made, adversely affect the status of any REMIC
created thereunder as a REMIC, and will not cause a tax to be imposed on any
REMIC created thereunder and (ii) otherwise satisfy the requirements of the
related Securitization Agreements, each in form and substance satisfactory to
the Purchaser, the Trustees and the Securities Insurers;
(j) The Seller shall have delivered to the Purchaser a written
acknowledgment, in form satisfactory to the Purchaser, from each sub-servicer
servicing Mortgage Loans of behalf of the Seller under the related
Securitization Agreement that all rights of such sub-servicer with respect to
the servicing of such Mortgage Loans under the related Securitization Agreement
or the related sub-servicing agreement have been terminated;
(k) A duly executed Assignment and Conveyance Agreement relating the
sale and transfer of the Servicing Rights and the Advance Receivables by the
Seller to the Purchaser shall have been delivered to the Purchaser; and
(l) All fees (including reasonable attorneys' fees and expenses)
owed to the Trustees under the related Securitization Agreements and incurred in
connection with the transactions contemplated hereunder shall have been paid as
of the Servicing Transfer Date, or provision for such payments at a future date
shall have been agreed to by the Trustees.
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In the event the Seller fails to satisfy in all material respects any of
the conditions set forth in this Section 2.03 as of the applicable date, the
Purchaser shall be entitled to terminate this Agreement and its obligations
hereunder in accordance with Section 6.01.
Section 2.04 CONDITIONS TO SELLER'S OBLIGATIONS.
The Seller's obligation to consummate the sale of the Servicing Rights
and the Advance Receivables to the Purchaser pursuant to this Agreement is
subject to the satisfaction or waiver on or prior to the Closing Date of the
following conditions:
(a) The Purchaser shall have performed in all material respects all
of its covenants and agreements contained herein which are required to be
performed by it, including payment of the Purchase Price pursuant to Section
2.02; and
(b) All of the representations and warranties of the Purchaser
contained in this Agreement shall be true and correct in all material respects
and no Material Adverse Effect shall have occurred with respect to the financial
condition of the Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER.
The Seller represents and warrants to and covenants with the Purchaser
as of the Closing Date:
(a) The Seller is a corporation duly organized and in good standing
under the laws of the Commonwealth of Pennsylvania and was at all material times
and now is qualified to do business and duly licensed in those states in which
each Mortgaged Property is located if the laws of such states require
qualification or licensing for the conduct of business of the type conducted by
the Seller, except where the failure to be so qualified or licensed would not
result in a Material Adverse Effect.
(b) The Seller has full power and authority, corporate and
otherwise, to execute and deliver this Agreement and to perform all its
obligations hereunder. The execution, delivery and performance of this Agreement
by the Seller and consummation of the transactions contemplated by this
Agreement have been duly and validly authorized by all necessary corporate,
shareholder or other action, and this Agreement has been duly and validly
executed and delivered by the Seller and is valid and enforceable against the
Seller in accordance with its terms, except as such enforceability may be
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of equity.
(c) Other than the approval of the Bankruptcy Court, no consent,
approval, authorization or order of any court or governmental agency or body is
required for the execution, delivery and performance by the Seller of, or
compliance by the Seller with, this Agreement, or the consummation of the
transactions contemplated hereby, and if any such consent, approval,
authorization or order is required, the Seller has obtained such approval.
Except for the applicable Major Consent Letters, no consent or approval of, or
notice to, the Securities Insurers,
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Trustees, Rating Agencies or securityholders under the Securitization Agreements
or any other persons is required for the execution, delivery and performance of
the Seller of the transactions contemplated by this Agreement. None of the
execution and delivery of this Agreement, the consummation of the transactions
contemplated by this Agreement or compliance with its terms and conditions,
shall conflict with or result in the breach of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance of
any nature upon, any of the Mortgage Loans, the Servicing Rights or the
properties or assets of the Seller, any of the terms, conditions or provisions
of its charter or by-laws or any similar corporate documents of the Seller or
any material mortgage, indenture, deed of trust, loan or credit agreement or
other material agreement or instrument to which the Seller is now a party or by
which it is bound or any federal or state law, rule or regulation or any
judicial or administrative decree, order, ruling or regulation applicable to it,
or to the Servicing Rights.
(d) Other than the Bankruptcy Case or as otherwise identified on
EXHIBIT 9 hereto, there is no litigation or action at law or in equity pending,
or, to its knowledge, threatened, against the Seller and no proceeding or
investigation of any kind is pending or, to its knowledge, threatened, by any
federal, state or local governmental or administrative body, which could
reasonably be expected to have a Material Adverse Effect.
(e) The sale and transfer of the Servicing Rights and Advance
Receivables by the Seller are not subject to the bulk transfer or similar
statutory provisions of applicable state or federal law.
(f) The Seller has not assigned, pledged or transferred its rights
in the Servicing Rights or the Advance Receivables (other than any assignment,
pledge or transfer of rights that shall be released or terminated as of the
Closing Date), and the Seller is the sole holder of the Servicing Rights and the
Advance Receivables and has good and marketable title to and has the right to
assign, transfer and deliver the Servicing Rights and the Advance Receivables as
contemplated by this Agreement free and clear of any and all claims, charges,
defenses, security interests, liens, offsets and encumbrances, and on the
Closing Date, the Purchaser will acquire the Servicing Rights and the Advance
Receivables free and clear of any and all claims, charges, defenses, security
interests, liens, offsets and encumbrances. There are no contracts affecting the
Servicing Rights or the Advance Receivables to which the Purchaser is or will be
bound except as specified in the Securitization Agreements and the Major Consent
Letters and no other party has any interest in the Servicing Rights or the
Advance Receivables other than pursuant to the Securitization Agreements and
this Agreement.
(g) The Seller, any current or prior holder of a Mortgage Loan, any
prior servicer of a Mortgage Loan and each party originally named as payee under
the Mortgage Notes and as mortgagee under the Mortgage with respect to any
Mortgage Loan, was in compliance with any and all applicable "doing business"
and licensing requirements of the laws of the state wherein the Mortgaged
Property is located, except where the failure to be in compliance would not
result in a Material Adverse Effect. The Seller is not in default in the
performance of its obligations under any Securitization Agreement or, pursuant
to the Major Consent Letters, any and all such defaults shall be waived forever
against the Purchaser in connection with the Purchaser's acquisition of the
Servicing Rights, but not against the Seller, which shall remain liable for any
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such default. The Seller is in material compliance with all applicable laws and
regulations relating to the servicing of the Mortgage Loans and the related
Servicing Rights.
(h) There are no actions, claims, litigation or governmental
investigations pending or, to the knowledge of the Seller, threatened, against
the Seller or with respect to any Mortgage Loan, which relate to, or affect the
Mortgage Loans or the Seller's rights with respect to the Servicing Rights or
the Seller's right to sell, assign and transfer the Servicing Rights (other than
usual and customary claims and actions regarding the Mortgage Loans, including
without limitation, individual actions or claims, foreclosure actions (contested
and uncontested), bankruptcy proceedings (including adversary proceedings), and
title claims (contested and uncontested), none of which could reasonably be
expected to have a Material Adverse Effect, and other than those actions,
claims, litigation or governmental investigations described on EXHIBIT 9).
(i) The information set forth on the Mortgage Loan Schedule and
other documents, instruments, schedules or electronic loan data furnished to the
Purchaser by the Seller or one of its affiliates pursuant to, or prior to and in
connection with, this Agreement is accurate and complete in all material
respects as of the dates indicated thereon or otherwise applicable.
(j) With respect to each Mortgage Loan, except as set forth in
EXHIBIT 10, all material documents required hereby or by Servicing Requirements
to be in the related Custodial File and Mortgage File are contained therein. The
Mortgage Loan documents being delivered to the Purchaser will be adequate and
sufficient in all material respects to properly service the Mortgage Loans in
accordance with the standards set forth in the Securitization Agreements.
(k) Each Mortgage Loan has been originated in compliance with all
applicable state or federal laws, regulations, and Servicing Requirements,
including, without limitation, those pertaining to usury, predatory and abusive
lending, truth-in-lending, real estate settlement procedures, consumer credit
protection (including Uniform Consumer Credit Code laws), fair credit reporting,
unfair collection practices, equal credit opportunity or fair housing and
disclosure, and at origination all Mortgage Loan documents were in compliance
with applicable law and Servicing Requirements in all material respects. The
origination practices used by the Seller with respect to each Mortgage Note and
Mortgage for Mortgage Loans originated by the Seller have been in all material
respects legal and customary in the subprime home equity loan industry.
(l) The collection, servicing and all other practices of the Seller
and any current or prior mortgagee or servicer or subservicer of the Mortgage
Loans in connection with the origination or servicing or subservicing of the
Mortgage Loans including, without limitation, the timing and manner of
liquidation, are and have been reasonable, prudent and customary and in
conformity with accepted servicing practices of prudent lending institutions
servicing subprime mortgage loans and in compliance with all applicable federal,
state and local laws and all rules, regulations and requirements in connection
therewith.
(m) The Seller has taken all necessary steps to maintain any hazard
insurance policy and primary mortgage insurance policy, as required under the
related Mortgage Loans and Securitization Agreements.
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(n) With regard to each Mortgage Loan which related Escrow Payments
are currently escrowed or required to be escrowed, all accounts for items which
are required to be escrowed pursuant to the terms of such Mortgage Loan,
including, without limitation, all taxes and hazard insurance premiums, are
current and, to the extent paid by the related Borrower or deemed recoverable
and advanced by the Seller, all amounts which have previously become due and
owing have been paid or escrow funds have been established in accordance with
the terms of such Mortgage Loan in amounts which the Seller believes to be
sufficient to pay for every such item which remains unpaid and which has been
assessed but is not yet due and payable or will be required to be paid to
continue operating the related Mortgaged Property in accordance with the terms
of the related Mortgage.
(o) Each Securitization Agreement delivered to the Purchaser
represents a true, correct, and complete copy of the original as it may have
been amended and restated. Each of the Securitization Agreements is in full
force and effect and has not been amended, modified, or altered, except as
reflected on EXHIBIT 5.
(p) The dollar amount of Unrecovered Advances with respect to the
Mortgage Loans to be provided by the Seller to the Purchaser and the Securities
Insurers pursuant to this Agreement, will be true and correct in all material
respects as of the date given. Nothing has come to the attention of the Seller
that would lead the Seller to believe that any Unrecovered Advance is not
recoverable pursuant to the related Securitization Agreement.
(q) Other than with respect to the "Shortfall" (as defined in the
DIP Loan Order), all payments received by the Seller with respect to any
Mortgage Loan have been remitted and properly accounted for pursuant to the
related Servicing Requirements. No payment of principal or interest on any such
Mortgage Loan has been forgiven, suspended or rescheduled except as disclosed on
the Mortgage Loan Schedule,in the DIP Loan Order and the electronic loan data
provided by the Seller to the Purchaser
(r) Each of the representations and warranties made with respect to
the Mortgage Loans and set forth in the related Securitization Agreement,
Unaffiliated Seller's Agreement (as defined in the Securitization Agreements) or
other agreements assigned to the related Trustee for the benefit of the related
Securities was true, correct and complete in all material respects as of the
respective dates made.
(s) No Mortgage Loan is subject to the provisions of the Home
Ownership and Equity Protection Act of 1994, as amended, nor is any Mortgage
Loan a "high cost," "predatory," "threshold" or "covered" or similar loan under
any federal, state or local laws or regulations (or similarly classified using
different terminology under any federal, state or local law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage loans
having high interest rates, points and/or fees).
Section 3.02 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PURCHASER.
The Purchaser represents and, warrants to and covenants with the Seller
that, as of the Closing Date:
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(a) The Purchaser is a federally chartered savings bank duly
organized and in good standing under the laws of the United States and is
qualified to do business and duly licensed in those states in which each
Mortgaged Property is located if the laws of such states require qualification
or licensing for the conduct of business of the type conducted by the Purchaser.
(b) The Purchaser has full power and authority, corporate and
otherwise, to execute and deliver this Agreement and to perform all its
obligations hereunder. The execution, delivery and performance of this Agreement
by the Purchaser and consummation of the transactions contemplated by this
Agreement have been duly and validly authorized by all necessary action, and
this Agreement has been duly and validly executed and delivered by the Purchaser
and is valid and enforceable against the Purchaser in accordance with its terms,
except as such enforceability may be subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to general
principles of equity.
(c) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Purchaser of, or compliance by the Purchaser with, this
Agreement, or the consummation of the transactions contemplated hereby, or if
any such consent, approval, authorization or order is required, the Purchaser
has obtained such approval. None of the execution and delivery of this
Agreement, the consummation of the transactions contemplated by this Agreement
or compliance with its terms and conditions, shall conflict with or result in
the breach of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance of any nature upon, any of the
properties or assets of the Purchaser, any of the terms, conditions or
provisions of its charter or by-laws or any similar corporate documents of the
Purchaser or any material mortgage, indenture, deed of trust, loan or credit
agreement or other material agreement or instrument to which the Purchaser is
now a party or by which it is bound or any federal or state law, rule or
regulation or any judicial or administrative decree, order, ruling or regulation
applicable to it, or to the Servicing Rights.
(d) There is no litigation or action at law or in equity pending,
or, to its knowledge, threatened, against the Purchaser and no proceeding or
investigation of any kind is pending or, to its knowledge, threatened, by any
federal, state or local governmental or administrative body, which could
reasonably be expected to have a Material Adverse Effect.
(e) The servicing practices to be used by the Purchaser under the
Securitization Agreements are and shall remain in all material respects in
compliance with the Servicing Requirements, including, without limitation, all
federal, state and local rules and all regulations and requirements in
connection therewith, and the Purchaser is qualified to service the Mortgage
Loans under the terms of the Securitization Agreements.
(f) The Purchaser is an approved servicer for FHLMC and FNMA for
first and second lien mortgage loans.
(g) The Purchaser has no reason to believe that it cannot perform
all of its obligations hereunder and with respect to the related Servicing
Requirements, and no event has occurred and is continuing with respect to the
Purchaser which, but for the passage of time or the giving of
17
notice or both, would constitute with respect to the Purchaser an event of
default under the related Securitization Agreement to the extent not addressed
by the Major Consent Letters.
(h) The Purchaser shall maintain an adequate and sufficient
servicing platform in order to perform all of the Purchaser's obligations under
the Securitization Agreements and this Agreement.
(i) The Purchaser has received a valid commitment letter with
respect to financing its obligations hereunder, and any such related
negotiations were conducted on an arm's length basis. No lender under any such
arrangement has any equity interest, profit sharing agreement, or contingent
interest in the Purchaser or any affiliate of the Purchaser.
ARTICLE IV
SERVICING TRANSFER PROCEDURES
Section 4.01 SERVICING TRANSFER DATE.
With respect to each Mortgage Loan for which the related Servicing
Rights are to be transferred to the Purchaser hereunder, the Seller shall comply
with the Servicing Transfer Procedures and deliver to the Servicer the Mortgage
File and any other Mortgage Loan documents or servicing-related documents in the
Seller's possession for each related Mortgage Loan on or prior to the Servicing
Transfer Date. With respect to the mechanics of Mortgage Loan boarding and
servicing transfer, to the extent any provision of this Agreement conflicts with
any provision of the Servicing Transfer Procedures, the provisions set forth in
this Agreement shall control. As further described in Section 4.08, any fees and
expenses incurred by or on behalf of the Seller in transferring the Mortgage
Files and such other documents to the Purchaser shall be the obligation of the
Seller. With respect to each Mortgage Loan, the Seller shall cause all funds in
any Escrow Account or Collection Account to be transferred to the Purchaser no
later than the fifth (5th) day following the Servicing Transfer Date.
On or prior to boarding, the Seller shall provide written notice to the
Purchaser identifying each Mortgage Loan which is not subject to a fully
assignable life-of-loan tax service contract issued by a tax service contract
provider listed on EXHIBIT 13 attached hereto. In the event that the Seller
fails to provide such notice to the Purchaser or if any Mortgage Loan is not
subject to a fully assignable life-of-loan tax service contract issued by a tax
service contract provider listed on EXHIBIT 13 attached hereto which is
assignable to the Purchaser or any subsequent servicer without the payment of
any cost or fee, the Purchaser shall acquire a tax service contract for any such
Mortgage Loan at a cost equal to no more than $71 per Mortgage Loan. The cost of
obtaining such tax service contracts shall be deducted from amounts paid to the
Seller by the Purchaser on the Closing Date or from the portion of the Purchase
Price held in escrow pursuant to Section 2.02.
In addition to any documents and files to be delivered by the Seller to
the Purchaser pursuant to the Servicing Transfer Procedures, no later than the
Servicing Transfer Date or such other date specified, the Seller shall deliver
to the Purchaser the following items or take the following actions, as
applicable:
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(a) An acknowledgment reasonably acceptable to the Purchaser of any
sub-servicer that the sub-servicer has been terminated as servicer and all costs
associated with such termination have been paid with such exceptions as are
otherwise permitted herein.
(b) The Seller shall provide to the Purchaser at least fifteen (15)
days prior to the Servicing Transfer Date, records as may be reasonably
requested by the Purchaser for the Purchaser to review the investor accounting
status of the Mortgage Loans; such records shall include, but, shall not be
limited to, the monthly Trustee remittance reports for at least the previous six
(6) months.
(c) The Seller shall have furnished the Purchaser with the following
additional information and documents not later than the Servicing Transfer Date,
except where otherwise specified:
(1) The Seller shall reconcile all Escrow Account balances
and shall remit the remaining balances held therein as
soon as possible after a reconciliation has been
completed, and in any event no later than five (5)
Business Days after the Servicing Transfer Date;
(2) The Mortgage File for each Mortgage Loan, including
imaged versions of the documents therein, where
available;
(3) Trial balances and pool to investor security
reconciliations for each Pool for each month for at
least the last six months as reasonably available and to
the extent reasonably necessary to and requested by the
Purchaser, through the Servicing Transfer Date;
(4) Complete principal and interest, tax, and insurance bank
account reconciliations as of the Servicing Transfer
Date;
(5) The loan analysis (including tax and interest statement)
for each Mortgage Loan to the extent such loan analysis
is reasonably necessary to and requested by the
Purchaser;
(6) Foreclosure and bankruptcy files and collection records,
including collection cards, default letters, demand
letters, payment plans and other forbearance agreements,
and property inspections for each Mortgage Loan as
required by Servicing Requirements, which may be
delivered in electronic format agreed to by the Seller
and the Purchaser;
(7) The Seller shall deliver to the Purchaser a copy of any
available Custodial File certification executed by the
related Trustee or Custodian on each Pool or, if such
certification is not available, the Seller shall deliver
to the Purchaser a status report on a loan-by-loan
basis, listing such missing documentation; and
(8) The Seller shall provide to the Purchaser information
necessary for the Purchaser to provide break-outs to
consumer purpose and business
19
purpose Mortgage Loans as required by the Amended and
Restated Securitization Agreements.
(d) All records delivered or transferred to the Purchaser shall be
organized by Pool and clearly identified in the Seller's loan number order. All
boxes shall be sequentially labeled and contain a complete listing of Mortgage
Files therein. The Seller shall provide the Purchaser a summary schedule
reflecting Mortgage Files therein and exceptions thereto and the Purchaser shall
sign and return one copy of the summary schedule.
(e) No later than five (5) Business Days after the Servicing
Transfer Date, a copy of the Seller's delinquency report showing the due date of
the Monthly Payment and the paid-to date as of such Servicing Transfer Date.
(f) No later than five (5) Business Days after the Servicing
Transfer Date, a copy of loan payment history and escrow analysis for each
Mortgage Loan in a format acceptable to the Purchaser.
(g) No later than ten (10) Business Days after the Servicing
Transfer Date, the Seller's certification that either (1) with respect to
Mortgage Loans as to which the Seller maintains escrows for such items, all
Insurance Policy premiums have been paid on all Mortgaged Properties which
premiums are due or will become due within thirty (30) days before or after the
Servicing Transfer Date, as requested by the Purchaser or (2) the Seller has
received no notice of delinquent premium payments.
(h) At least fifteen (15) days prior to the Servicing Transfer Date,
copies of notifications prepared by the Seller, in duplicate, addressed to each
of the related insurance companies requesting endorsements to the mortgagee
clause to the Purchaser.
(i) On or before the Servicing Transfer Date, a list of all related
Mortgage Loans that are on an automatic clearing house program, including loans
number, withdrawal amount, withdrawal date, account number, and all other
similar information.
(j) On or before the related Servicing Transfer Date, all unexpired
payoff quotes including date of quote, amount of quote and all other relevant
information.
(k) On of before the related Servicing Transfer Date, a list of all
related Mortgage Loans with open or pending disputes, including loan number and
all information in respect of such dispute.
Section 4.02 NOTICE LETTERS OF TRANSFER.
Prior to the Servicing Transfer Date, unless otherwise agreed by the
parties and the relevant Securities Insurer or Trustee, the Purchaser and the
Seller shall, at the Seller's expense, notify each Borrower of the transfer of
servicing and instruct the Borrower to remit all Monthly Payments and all tax
and insurance notices to the account designated by the Purchaser after the
Servicing Transfer Date. Such letters shall be mailed on such date and be in
such form as is reasonably acceptable to the Seller and the Purchaser. The
Seller and the Purchaser shall exchange copies of the "hello-goodbye" letters
with each other prior to mailing such letters and
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shall cooperate on a joint mailing program for notification to the Borrowers.
The Seller shall also, at the Seller's expense, notify any Custodian and
insurance companies and/or agents, that servicing is being transferred and
instruct such entities to deliver all payments, notices, and insurance
statements to the Purchaser after the Servicing Transfer Date. Such notices
shall instruct such entities to deliver, from and after the Servicing Transfer
Date, all applicable payments, notices, bills, statements, records, files and
other documents to the Purchaser. All such notices sent to hazard, flood,
earthquake, private mortgage guarantee and other insurers shall comply with the
requirements of the applicable master policies and shall instruct such insurers
to change the mortgagee clause to "Ocwen Federal Bank FSB [Ocwen Loan Services,
LLC], its successors and assigns" or as otherwise required under applicable
Servicing Requirements. Other than the costs related to the Purchaser's "welcome
letters," the Seller shall be responsible for the cost of preparing and
delivering all notices described in this Section.
Section 4.03 STATEMENTS.
The Seller shall provide each Borrower with an annual year-end statement
in accordance with the Securitization Agreements, and Internal Revenue Service
or Treasury Department regulations. Such statement shall reflect the status of
the Mortgage Loan up to and including the Servicing Transfer Date. The Purchaser
shall not have any responsibility for providing such information for the period
of time the Mortgage Loan was serviced by the Seller.
Section 4.04 PAYMENTS AND NOTICES RECEIVED AFTER THE SERVICING
TRANSFER DATE.
The Seller and the Purchaser acknowledge that, from and after the
Servicing Transfer Date, all funds received in connection with the Mortgage
Loans, including, but not limited to, tax, insurance, principal, interest and
all other types of payments, including, without limitation, mortgage guaranty or
mortgage insurance payments, insurance loss drafts and tax refunds, are to be
immediately paid over to the Purchaser without offset or deduction. The
Purchaser shall be entitled to the servicing fees and other servicing related
income on all such payments. Any such funds received by the Seller shall be
identified by the Seller's loan numbers and shall be immediately transferred to
the Purchaser at the Seller's expense (i) during the first forty-five (45) days
following the Closing Date, by overnight courier, for next Business Day
delivery, and (ii) after such 45-day period, by first class mail, in each case
at the address for notices to the Purchaser. In addition, the Seller shall
deliver or cause to be delivered to the Purchaser, as promptly as practicable
after receipt by the Seller, copies of all correspondence received from any
investor or any Borrower or otherwise relating to any Mortgage Loans. The Seller
hereby covenants and agrees that it shall maintain such staff and facilities
that are sufficient to perform all of such responsibilities.
Section 4.05 SERVICE BUREAU COOPERATION.
The Seller will cause its service bureau and/or EDP department to
cooperate with the Purchaser, and the Seller will provide a test tape, trial
tape, and an accurate conversion tape containing all history maintained by the
service bureau until the Servicing Transfer Date, Pool and loan information as
of the Servicing Transfer Date so as to complete the conversion of all loan,
Pool, and security information recorded on an EDP to EDP basis, or such other
basis as
21
may reasonably be requested by the Purchaser, including the information set
forth in Section 4.01. Such tapes shall be provided to the Purchaser in
accordance with Section 4.01.
Section 4.06 MISSING SOCIAL SECURITY NUMBER; FORMS W-8 OR W-9.
The Seller will provide a report satisfactory in form and content to the
Purchaser to substantiate compliance with Internal Revenue Service and other
applicable Treasury Department regulations and requirements applicable to
reporting of interest and obtaining Social Security numbers in respect of
Mortgage Loans serviced by the Seller under any Securitization Agreements for
the period through the Servicing Transfer Date. The Seller also agrees to
provide the certification of an authorized officer that the Seller has complied
with all Internal Revenue Service and Treasury Department requirements for due
diligence in obtaining and maintaining tax identification numbers for each
Mortgage Loan transferred.
Section 4.07 ACCESS TO INFORMATION.
Upon reasonable prior notice to the Seller, the Seller shall afford
reasonable cooperation to the Purchaser and its counsel, accountants and other
representatives in providing reasonable access during normal business hours
throughout the period prior to the Servicing Transfer Date, to the Mortgage
Files and all of the Seller's files, books and records relating to the Mortgage
Loans, the Advances and the Servicing Rights; PROVIDED, HOWEVER, that the Seller
shall be entitled to take reasonable and appropriate actions to assure that the
Purchaser maintains, and the Purchaser hereby agrees to maintain, the
confidentiality of the names and addresses of the Borrowers under the Mortgage
Loans and all non-public information obtained in such investigation that could
reasonably be construed to be of a confidential or proprietary nature, and the
Seller shall provide the Purchaser with access to and reasonable cooperation
with its officers and employees. The Purchaser and its representatives and
affiliates shall treat as confidential all information obtained in such
investigation and not otherwise in the public domain.
Section 4.08 TRANSFER EXPENSES.
Except as provided below, the Seller shall pay for all costs relating to
transfer of the Servicing Rights and Advance Receivables including, without
limitation, all costs of insured delivery to the Purchaser of all of the
Mortgage Files, all costs in connection with preparing, obtaining and delivering
the documents, consents, approvals, reports and schedules specified in Section
2.03 and Section 4.01, all costs related to preparing, obtaining and delivering
such other documents as may be required to effect to transfer of the Servicing
Rights and Advance Receivables as contemplated hereunder, including, without
limitation, such documents required pursuant to RESPA, and all fees (including,
without limitation, reasonable attorneys' fees and expenses) owed to the
Trustees under the related Securitization Agreements and incurred in connection
with the transactions contemplated hereunder. The Purchaser shall not be
responsible for any fees or expenses of any Custodian, Trustee, Securities
Insurer, sub-servicer or back-up servicer or any costs related to the
performance of any REMIC reporting or administration obligations required under
any applicable Securitization Agreement. Except as otherwise provided in this
Agreement, the Seller and the Purchaser shall each bear their own expenses
incurred in connection with the transactions contemplated by this Agreement,
including, without
22
limitation, all legal fees related to the negotiations and preparation of this
Agreement and all related agreements, and the cost incurred with respect to due
diligence investigations.
ARTICLE V
ADDITIONAL AGREEMENTS
Section 5.01 MORTGAGE LOAN REPURCHASES.
(a) Notwithstanding anything herein or in any Securitization
Agreement to the contrary, in no event shall the Purchaser be required under any
Securitization Agreement to purchase any Mortgage Loan subject to a
Securitization Agreement as a result of a breach of representation or warranty
with respect to such Mortgage Loan or for any other reason. Such purchase
obligations shall remain solely the obligation of the Seller and its affiliates
in accordance with the terms of the related Securitization Agreement.
(b) In the event that a Securitization Agreement permits the Seller
or any of its affiliates to purchase, at its option, any Mortgage Loans that are
contractually delinquent beyond a specified number of days, the Purchaser
acknowledges and agrees that on and after the Closing Date the Seller or an
affiliate, as applicable, shall retain the right, if any, to purchase such
delinquent Mortgage Loans in accordance with the terms of the related
Securitization Agreement.
Section 5.02 ANNUAL STATEMENT AS TO COMPLIANCE.
No later than fifteen (15) days prior to the date on which the Purchaser
shall be required to provide to the related Trustee and/or depositor, an annual
statement of compliance in a form required under the related Securitization
Agreement (the "ANNUAL CERTIFICATION"), the Seller shall provide to the
Purchaser an annual statement of compliance substantially in the form of the
Annual Certification covering the period for which the Seller serviced and
administered the related Mortgage Loans and shall also provide to the Servicer
an annual independent public accountants' servicing statement substantially in
the form required to be provided by the Purchaser under the related
Securitization Agreement covering such period.
Section 5.03 BANKRUPTCY COURT APPROVAL PROCEEDINGS.
The Seller shall use its best efforts to obtain, and shall refrain from
knowingly taking any action that would be likely to delay, prevent, impede or
result in the revocation of the entry by the Bankruptcy Court of the Sale
Procedures Order or the Sale Order. The Seller shall use its best efforts to
cause the entry by the Bankruptcy Court of the Sale Procedures Order on or
before March 10, 2005 and the Sale Order on or before April 4, 2005.
Section 5.04 NONSOLICITATION.
From and after the Servicing Transfer Date, neither the Seller nor any
of its agents or affiliates shall contact any Borrower for the purpose of
inducing or encouraging the early prepayment or refinancing of the related
Mortgage Loan, nor has the Seller or any of its agents or affiliates utilized,
nor shall they utilize, any information held or acquired by the Seller or such
other incidental income or benefit from the Servicing Rights, nor has the Seller
or such agents or
23
affiliates given, nor will they give, a list of Borrowers to any person for such
purpose or to derive any other incidental income or benefit from the Servicing
Rights. Notwithstanding anything herein to the contrary, but subject to
applicable law and the provisions of the related Securitization Agreement, in
the event that the Purchaser receives a payoff request from a Borrower with
respect to the related Mortgage Loan, the Purchaser agrees to identify such
Borrower to the Seller. Should such identification and subsequent contact of
such Borrower by the Seller or any of its affiliates (which contact shall in all
respects be in accordance with applicable law) directly or indirectly result in
the origination of a new mortgage loan by the Seller or any of its affiliates to
such Borrower (including, without limitation, junior lien mortgage loans and
refinanced mortgage loans), the Purchaser, without payment of any fee, shall be
entitled to the servicing rights related to such new mortgage loan and shall
service such new mortgage loan in accordance with the terms of a servicing
agreement to be entered into by the Seller and the Purchaser.
Section 5.05 PREPAYMENT PENALTIES.
(a) The Purchaser shall remit all Prepayment Penalties collected
with respect to the Mortgage Loans after the Servicing Transfer Date to an
account designated by the Seller on the Remittance Date next succeeding the
calendar month in which such Prepayment Penalties were collected.
(b) On and after the Servicing Transfer Date, the Purchaser shall
have no liability to the Seller or any other party to the extent that the
Purchaser waives or fails to collect a Prepayment Penalty if (i) the related
Mortgage Loan is in default or foreseeable default and such waiver (a) is
standard and customary in servicing similar mortgage loans to the Mortgage Loans
and (b) would, in the reasonable judgment of the Purchaser, maximize recovery of
total proceeds taking into account the value of such Prepayment Penalty and the
related Mortgage Loan or (ii)(a) the enforceability thereof is limited (1) by
bankruptcy, insolvency, moratorium, receivership, or other similar law relating
to creditors' rights generally or (2) due to acceleration in connection with a
foreclosure or other involuntary payment, or (b) the enforceability of the
Prepayment Penalty is otherwise limited or prohibited by applicable law. For the
avoidance of doubt, the Purchaser may waive a Prepayment Penalty in connection
with a short sale or short payoff on a defaulted Mortgage Loan.
Section 5.06 CLEAN-UP CALL RIGHTS.
The Seller and the Purchaser agree that the Seller or the holders of the
related residual securities shall be entitled to exercise any clean-up call or
redemption option and effect the termination of the related securitization
pursuant to the terms and conditions set forth in the related Securitization
Agreement. In the event that the Seller or the holders of the related residual
securities do not exercise any such clean-up call or redemption option within
ninety (90) days following the first Business Day on which such option may be
exercised under the related Securitization Agreement, the Purchaser shall have
the right to exercise such clean-up call or redemption option. Notwithstanding
anything herein or in the related Securitization Agreement to the contrary, in
the event that any party other than the Purchaser or a Securities Insurer
exercises a clean-up call or redemption option under any Securitization
Agreement, such option shall be exercised on a servicing-retained basis, in
connection with which the Purchaser shall
24
retain the Servicing Rights related to the Mortgage Loans subject to such
clean-up call or redemption option; PROVIDED, HOWEVER, that the exercising party
may, at its option, purchase the related Servicing Rights from the Purchaser at
a price equal to the fair market value (as agreed upon by the Purchaser and such
exercising party) of the Servicing Rights.
Section 5.07 INFORMATION; REPORTS.
The Purchaser agrees to provide to the Seller all reasonably requested
information and reports (including, but not limited to, (i) any such information
and reports required by the applicable Securitization Agreement, as amended, to
be provided by the Purchaser to the Trustee, the Securities Insurer or the
holders of any securities issued in connection therewith and (ii) reasonable
access to the Purchaser's servicing system with respect to delinquency and REO
information), subject to applicable law, necessary to allow the Seller or any of
its affiliates to perform any required duties or obligations thereunder or
hereunder, or to exercise any rights or remedies thereunder or hereunder. The
Purchaser agrees to provide to the Seller, no later than March 9, 2005, the most
recent audited and unaudited financial statements of the consolidated group of
which the Seller is a part. In addition, the Purchaser agrees to provide to the
Official Committee of Unsecured Creditors appointed in connection with the
Bankruptcy Case, the Securities Insurers and the Trustees all information
reasonably requested by such parties.
Section 5.08 ONGOING INDUCEMENT FEE.
On each Ongoing Inducement Calculation Date, if the Performance Goal has
been met, the Seller, upon written confirmation from the Seller to the
Purchaser, agrees to pay to the Purchaser within thirty (30) days of such
Ongoing Inducement Calculation Date, the Ongoing Inducement Fee. It is expressly
agreed that the obligation to pay such amount is not an obligation of any of the
trusts created under any of the Securitization Agreements.
Section 5.09 BIDDING PROCEDURES.
The Purchaser agrees to comply with the Bidding Procedures in connection
with the transactions contemplated hereby.
Section 5.10 INDEMNIFICATION.
Except as may be otherwise agreed to by the Purchaser and the related
Securities Insurer, the Purchaser hereby agrees to accept the indemnification
provisions set forth in each Securitization Agreement as such provisions relate
to the servicing obligations thereunder; PROVIDED, HOWEVER, that in no event
shall the Purchaser have any indemnification obligation under any Securitization
Agreement arising out of, related to or in connection with the acts or omissions
of the Seller or any affiliate of the Seller; AND PROVIDED FURTHER, that the
Purchaser shall be reimbursed from the related Collection Account for all
reasonable costs and expenses, including reasonable counsel fees, incurred in
connection with claims made by a third party with respect to the related
Securitization Agreement, except when the claim arises from the willful
misconduct of the Purchaser or the failure of the Purchaser to service the
Mortgage Loans in compliance with the terms of the related Securitization
Agreement.
25
Section 5.11 CALCULATING AGENT RESPONSIBILITIES.
The Purchaser agrees to assume the Calculating Agent Responsibilities
under the related Securitization Agreements in the event the Trustee or other
party does not agree to assume such obligations, provided, however, that the
assumption of such Calculating Agent Responsibilities is subject to the Seller
providing to the Purchaser, at the Seller's expense, the computer model and
other information reasonably necessary in order for the Purchaser to perform
these obligations and the Seller, at its expense, retaining and making available
adequate employees or agents of the Seller that were responsible for performing
the Calculating Agent Responsibilities for at least 90 days following the
Closing Date to assist the Purchaser in transitioning and performing the
Calculating Agent Responsibilities, all of which the Seller hereby covenants and
agrees to provide.
Section 5.12 TRANSITION SERVICES TO BE PROVIDED BY THE SELLER.
The Seller covenants and agrees that (1) prior to the Servicing Transfer
Date, the Seller shall maintain such staff, equipment and facilities as adequate
and sufficient to perform its obligations to service the Mortgage Loans pursuant
to the Securitization Agreements and (2) during the seventy-five (75) day period
following the Servicing Transfer Date, the Seller shall maintain such staff,
equipment and facilities as necessary to facilitate the transfer of servicing of
the Mortgage Loans to the Purchaser pursuant to this Agreement.
ARTICLE VI
TERMINATION
Section 6.01 TERMINATION.
(a) Notwithstanding anything herein to the contrary, this Agreement
may be terminated and the transactions contemplated hereby abandoned at any time
prior to the Closing Date:
(i) by mutual written consent of the Seller and the
Purchaser;
(ii) automatically, upon consummation of the sale of the
Servicing Rights to a party other than the Purchaser;
(iii) by the Purchaser, if the Seller or an affiliate of the
Seller enters into a binding or non-binding letter of intent or
definitive agreement (regardless of whether such letter of intent or
definitive agreement has been approved by the Bankruptcy Court)
providing for, or otherwise agrees to, the sale, assignment or other
transfer of any or all of the Seller's rights in, to and under the
Servicing Rights or the Advance Receivables to a party other than the
Purchaser; PROVIDED, HOWEVER, that the entry by the Seller into a
non-binding letter of intent with a party other than the Purchaser in
compliance with the Bidding Procedures shall not be cause for
termination by the Purchaser under this clause (iii);
(iv) by the Purchaser or by the Seller, if the Bankruptcy
Court or any other court of competent jurisdiction in the United States
or any other governmental authority
26
shall have issued an order, decree, ruling or taken any other action
restraining, enjoining, otherwise prohibiting or refusing to approve the
purchase of the Servicing Rights or Advance Receivables on the terms and
conditions contained herein and such order, decree, ruling or other
action shall have become a Final Order;
(v) by the Purchaser, if the Seller or an affiliate of the
Seller files with the Bankruptcy Court any plan of reorganization or
liquidation that requires or contemplates either (A) the sale,
assignment or other transfer of the Seller's interest in, to and under
the Servicing Rights or Advance Receivables to a party other than the
Purchaser or (B) the retention of such Servicing Rights or Advance
Receivables by the Seller;
(vi) by the Purchaser, in the event any condition set forth
in Section 2.03 is not satisfied or waived as of the Closing Date;
(vii) by the Seller, in the event that any condition set forth
in Section 2.04 is not satisfied or waived as of the Closing Date;
(viii) by the Purchaser, if there is a material breach by the
Seller of its obligations hereunder, and such breach is not cured within
five (5) Business Days after receipt of written notice from the
Purchaser specifying such breach;
(ix) by the Seller, if there is a material breach by the
Purchaser of its obligations hereunder, and such breach is not cured
within five (5) Business Days after receipt of written notice from the
Seller specifying such breach;
(x) by the Purchaser, in the event the Seller's rights to
service the Mortgage Loans under any Securitization Agreement are
terminated as a result of the Seller's failure to comply with this
Agreement or the Bidding Procedures and the Seller does not have the
right to sell the related Servicing Rights prior to the Closing Date; or
(xi) by the Purchaser, if the Closing Date shall not have
occurred by May 31, 2005; PROVIDED, HOWEVER, that the Purchaser's right
to terminate this Agreement under this clause (xi) shall not be
applicable if the Purchaser's failure to fulfill any obligation
hereunder is the cause of or reason for the Closing Date not having
occurred by May 31, 2005.
(b) In the event of the termination of this Agreement pursuant to
Section 6.01(a), this Agreement shall become void and have no effect and there
shall be no liability on the part of any party hereto or such party's
affiliates, directors, officers, employees, agents or shareholders, except for
the return of any good faith deposit made by the Purchaser and Section 6.01(c)
(with respect to payment of the Break-up Fee); PROVIDED, HOWEVER, that, if this
Agreement is terminated because of a breach of this Agreement by the
non-terminating party or because one or more of the conditions set forth in
Section 2.03 or 2.04 is not satisfied by the non-terminated party, then the
terminating party's right to pursue all available legal remedies shall survive
the termination of this Agreement unimpaired.
(c) From and after the entry of the Sale Procedures Order, in the
event that this Agreement is terminated pursuant to Section 6.01(a)(ii), (iii),
(v) (but solely to the extent that any
27
such plan of reorganization or liquidation is confirmed by the Bankruptcy
Court), (vi), (viii), (x), or (xi) hereof, and such termination is not due to a
material breach by the Purchaser of any of its obligations hereunder or the
failure of a condition solely within the Purchaser's control, the Seller shall
pay to the Purchaser, within fifteen (15) days following such termination, the
Break-up Fee; PROVIDED, HOWEVER, that in the event this Agreement is terminated
pursuant to Section 6.01(a)(ii), the Break-up Fee shall be payable to the
Purchaser upon the closing of the sale of the Servicing Rights to a party other
than the Purchaser and shall be paid out of the proceeds of such sale. Payment
of the Break-up Fee shall be made by wire transfer of immediately available
funds to an account designated by the Purchaser in writing. Payment of the
Break-up Fee shall be deemed an allowed super-priority administrative expense
claim and paid by the Seller as such.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 AMENDMENT.
This Agreement may be amended from time to time by the Purchaser and the
Seller only by written agreement signed by the Purchaser and the Seller and
consented to by the Securities Insurers; PROVIDED, HOWEVER, that no such
amendment that amends or modifies the provisions hereof relating to the Break-up
Fee shall be effective, binding and enforceable unless the Purchaser and the
Seller have obtained either (i) the prior written consent of the Official
Committee of Unsecured Creditors appointed in connection with the Bankruptcy
Case to such amendment or (ii) an order of the Bankruptcy Court (or other court
of competent jurisdiction) approving such amendment.
Section 7.02 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK (AND NOT THE CONFLICTS OF LAWS PRINCIPLES
THEREOF) EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW.
Section 7.03 WAIVER OF TRIAL BY JURY.
THE SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 7.04 LIMITATION OF DAMAGES.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE PARTIES
AGREE THAT NONE OF THE PARTIES SHALL BE LIABLE TO ANY OTHER PARTY FOR ANY
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL OR EQUITABLE
PRINCIPLE, PROVIDED,
28
HOWEVER, THAT SUCH LIMITATION SHALL NOT BE APPLICABLE WITH RESPECT TO THIRD
PARTY CLAIMS MADE AGAINST A PARTY.
Section 7.05 NOTICES.
All notices or other communications hereunder shall be in writing and
shall be deemed to have been given and received: (a) upon receipt if delivered
personally (unless subject to clause (b)) or if mailed by registered or
certified mail return receipt requested, postage prepaid five (5) Business Days
after deposit in the U.S. Mail; (b) at 5:00 p.m. local time on the Business Day
following dispatch if sent by a nationally recognized overnight courier; or (c)
upon completion of transmission (which is confirmed by telephone) if transmitted
by telecopy or other means of facsimile which provided immediate or near
immediate transmission to compatible equipment in the possession of the
recipient, in any case to the parties at the following addresses or telecopy
numbers (or at such other address or telecopy number for a party as will be
specified by like notice).
If to the Purchaser:
Ocwen Federal Bank FSB
The Forum, Suite 1002
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Seller:
American Business Credit, Inc.
The ▇▇▇▇▇▇▇▇▇▇ Building
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
SSG Capital Advisors, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation Number: (▇▇▇) ▇▇▇-▇▇▇▇
Section 7.06 EXHIBITS.
29
The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
Section 7.07 HEADINGS.
Headings of the Articles and Sections in this Agreement are for
reference purposes only and shall not be deemed to have any substantive effect.
Section 7.08 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement.
Section 7.09 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;
(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 without limitation
by reason of enumeration.
Section 7.10 REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (i) consents, waivers and modifications which may hereafter be
executed, (ii) documents received by any party at the closing, and (iii)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that
30
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.
Section 7.11 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall be
deemed to be one instrument. It shall not be necessary in making proof of this
Agreement or any counterpart thereof to produce or account for any other
counterpart.
Section 7.12 ENTIRE AGREEMENT, SUCCESSORS AND ASSIGNS.
Except as otherwise provided herein, this Agreement constitutes the
entire agreement between the parties hereto and supersedes all rights and prior
agreements and understandings, oral and written, between the parties hereto with
respect to the subject matter hereof. This Agreement shall not be assignable in
whole or in part by the Seller. The Purchaser shall be permitted to assign this
Agreement without the prior consent of any party, to an affiliated entity in
connection with the sale of all or substantially all of its assets or a merger
or other consolidation transaction with such affiliated entity. This Agreement
and any rights, remedies, obligations or liabilities under or by reason of the
Agreement shall inure to the benefit of and be binding on the parties hereto or
their respective successors and permitted assigns.
Section 7.13 BROKERAGE COMMISSIONS.
The Purchaser and the Seller (other than with respect to SSG Capital
Advisors, L.P., whose fees shall not be the responsibility of the Purchaser),
each represents to the other party hereto, that it has dealt with no broker in
connection with the transactions contemplated by this Agreement who is entitled
to a commission or fee payable by any other party hereunder.
Section 7.14 FURTHER ASSURANCES.
From time to time prior to the Closing Date, the Seller shall furnish to
the Purchaser such reports, information or documentation supplementary to the
information contained in the documents and schedules delivered pursuant hereto
and deliver such reports as may reasonably be requested by the Purchaser and as
are reasonably normal and customary in the mortgage servicing industry, and the
Purchaser and the Seller shall afford reasonable cooperation each to the other
both prior to and following the Closing Date.
The Seller and the Purchaser will each, at the request of the other,
execute and deliver to each other all such other instruments or documentation
that either may reasonably request in order to effect the consummation of the
agreements hereunder.
Section 7.15 SURVIVAL.
The representations, warranties, covenants and agreements set forth in
this Agreement shall survive the Closing Date, the assumption and assignment of
the Servicing Rights and the
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Advance Receivables related to the Unrecovered Advances, and payment by the
Purchaser to the Seller therefor; PROVIDED, HOWEVER, that the covenants and
agreements set forth in Sections 4.01, 4.03, 4.04, 4.06, 5.01, 5.02, 5.04, 5.05,
5.06, 5.07, 5.08, 5.10, 5.11, 5.12 and Article VII shall be the only provisions
hereof that survive the expiration of the 45-day period following the Closing
Date set forth in Section 2.01(a).
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IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the date
first above written.
OCWEN FEDERAL BANK FSB
(Purchaser)
By:__________________________________
Title:_______________________________
Dated:_______________________________
AMERICAN BUSINESS CREDIT, INC.
(Seller)
By:__________________________________
Title:_______________________________
Dated:_______________________________
