EXHIBIT 10.6
FORM OF
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (the "Agreement"), dated as of December 15,
1997, is made by and between AEGIS INVESTMENT TRUST, a Maryland real estate
investment trust ("Owner") and AEGIS MORTGAGE CORPORATION, an Oklahoma
corporation ("Servicer").
RECITALS
A. From time to time the Owner may agree to buy mortgages on real
estate.
B. The Servicer is engaged in the business of servicing mortgages and
desires and is willing to service mortgages for the Owner and the Owner
desires to have mortgages serviced by the Servicer.
Accordingly, the Servicer and the Owner agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. "MORTGAGE LOAN"; "MORTGAGOR". The term "Mortgage
Loan(s)" as used herein shall mean loans secured by real estate serviced for
the owner by the Servicer and shall include both the instrument creating the
security interest in the real estate and debt instrument evidencing the
obligation secured thereby, unless the context otherwise requires. The term
"Mortgagor" shall be deemed to include the maker of the security instrument,
the maker of the debt instrument, and any subsequent owner of the mortgaged
premises, unless the context otherwise requires.
ARTICLE II
DUTIES AND OBLIGATIONS OF SERVICER
Section 2.1. APPLICATION OF THIS AGREEMENT. This Agreement shall
govern the servicing by the Servicer of all Mortgage Loans which the Servicer
shall agree to service for the Owner. This Agreement has been duly
authorized, executed and delivered by Servicer and constitutes a valid
obligation of Servicer enforceable in accordance with its terms.
Section 2.2. ASSUMPTION OF DUTIES; STANDARD OF CARE. Servicer agrees
that it shall at all times service the Mortgage Loan in accordance with all
applicable statutes; regulations, contractual provisions, and in accordance
with prudent mortgage banking practices. It is understood and agreed that
Servicer shall exercise the same standard of care that it exercises in the
servicing of Mortgage Loans for its own account. Correspondingly, Owner does
hereby grant to the Servicer the right to exercise and enjoy all of the
rights, powers and privileges typically enjoyed by a lender servicing
mortgages for its own account except as otherwise provided herein. Among the
services to be provided by Servicer during the service period are:
(a) Proceed diligently to collect all payments due under the terms
of each Mortgage Loan as it becomes due, except that Servicer shall not
accelerate the maturity, file suit or initiate foreclosure of any Mortgage
Loan without prior approval from the Owner.
(b) Keep a complete, accurate and separate account of and properly
apply all sums collected by it from the Mortgagor on account of each such
Mortgage Loan for principal and interest, taxes, assessments, and other
public charges, hazard insurance premiums and mortgage insurance premiums;
and upon request, furnish Owner with evidence acceptable to Owner of all
expenditures for taxes, assessments and other public charges, hazard
insurance premiums and mortgage insurance premiums.
(c) Deposit funds remitted by the Mortgagor for the purpose of
paying principal and interest, taxes, assessments, hazard insurance premiums,
mortgage insurance premiums and other such charges in one or more escrow
accounts maintained and held in the name of Servicer.
(d) Perform such other customary duties, furnish such other
reports and execute such other documents in connection with its duties
hereunder as Owner from time to time may reasonably require, provided that
such duties, reports or documents are compatible with duties normally
undertaken, reports normally furnished, and documents normally executed by
the Servicer in the ordinary course of its loan servicing activities.
Section 2.3. FEES AND ADVANCES. Servicer shall be responsible for any
advances required for the various mortgage escrow/impound accounts, and shall
be responsible for prompt payment of all hazard insurance premiums and real
estate taxes. If adequate funds are not held in escrow to pay, when due,
real estate taxes or insurance premiums on any property securing a Mortgage
Loan, Servicer shall advance sufficient funds to cover any such deficiency in
a manner to ensure timely payment of such taxes of insurance premiums.
Servicer shall also bear all costs normally associated with servicing,
including but not limited to interest, if any, payable on escrow accounts.
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Section 2.4. REMITTANCES. The Servicer shall remit actual collected
principal and interest payments less Servicer's compensation as provided in
Section 3.1 hereof, at least monthly.
Section 2.5. AVAILABILITY OF ORIGINAL DOCUMENTS. Owner shall, or
shall cause its custodian to, make available to Servicer original loan
documents to the extent reasonably necessary to enable Servicer to carry out
normal servicing functions including, but not limited to, payoffs and
satisfactions.
ARTICLE III
COMPENSATION OF SERVICER
Section 3.1. SERVICER'S COMPENSATION. The Servicer's compensation for
the performance of its duties hereunder with respect to each Mortgage Loan,
shall consist of an amount to be deducted by the Servicer from the portion of
each monthly installment applicable to interest when and as collected.
Unless otherwise agreed by the parties, the rate of compensation for
servicing of Mortgage Loans shall be eight dollars per loan per month
($8.00/loan/month), plus any late charges applicable. Such compensation
shall be paid for any Mortgage Loans held for all or any part of the month.
The Servicer shall also be entitled to miscellaneous fees, earnings from
escrow deposits, or other income as is customarily provided by the servicing
rights. Servicing compensation shall be due to the Servicer with respect to
any Mortgage Loan beginning with the date of commencement of the servicing
duties by the Servicer until termination or relinquishment thereof.
ARTICLE IV
MISCELLANEOUS
Section 4.1. INDEMNIFY. The Servicer shall indemnify the Owner and
hold it harmless for any loss, damage or expense that the Owner may sustain
as a result of any failure on the part of the Servicer properly to perform
its services, duties, and obligations under this Agreement.
Section 4.2. TERMINATION. The Owner may terminate servicing by the
Servicer with respect to any Mortgage Loan or all Mortgage Loans at any time
with or without cause upon sixty (60) days written notice; provided, however,
if such termination is without cause, the Owner shall pay Servicer a
"Cancellation of Servicing" fee equal to the "fair market value" of the
portfolio so terminated, as determined in good faith by both of the parties.
Upon termination by the Owner of servicing with respect to any Mortgage Loan,
the Servicer shall promptly supply any reports, documents, and
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information as are requested by the Owner, and shall use its best efforts to
effect the orderly and efficient transfer of servicing to a new servicer
designated by the Owner, including preparation of any accounting and
statement in the form requested by the Owner.
Section 4.3. ASSIGNMENT BY THE OWNER. The Owner shall have the right,
with consent of the Servicer, to assign, convey or transfer, in whole or in
part, its interest under this Agreement with respect to any Mortgage Loan,
and assignee or transferee shall accede to the rights and obligations
hereunder of the Owner. All references to the Owner shall be deemed to
include its assignee, designee or transferee. The Owner shall have the right
to direct the Servicer to send remittances, notices, reports and other
communications to any person or entity designated by the Owner, and may
designate any such person to exercise any and all rights of the Owner
hereunder, provided that the Servicer will be reimbursed for any costs of
providing such duplicate reports.
Section 4.4. ASSIGNMENT BY THE SERVICER. The Servicer agrees that
because of the nature of the services to be performed, it shall not have the
right to assign its interests under this Agreement, except upon written
authorization by the Owner. In the event that the Owner authorizes a
subcontract for the servicing of any Mortgage Loan, the Servicer shall not be
relieved of any of its obligations under this Agreement with respect to the
servicing of such Mortgage Loan.
Section 4.5. EQUAL OPPORTUNITY. Servicer shall comply with Title VI
of the Civil Rights Act of 1964, and title VIII of the Civil Rights Act of
1968, and any applicable regulations and orders thereunder and with Executive
Order 11063, Equal Opportunity in Housing, issued by the President of the
United States on November 20, 1962.
Section 4.6. NOTICE. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly given or delivered if delivered personally or mailed by registered or
certified mail return receipt requested with first class postage prepaid as
follows:
If to Owner:
AEGIS Investment Trust
0000 Xxxx Xxxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Managing Director
If to Servicer:
Aegis Mortgage Corporation
0000 X. Xxxx, Xxxxx 000
0
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxx
or such other address as any person may request by notice given. Notices
sent as provided herein shall be deemed to have been delivered on the fifth
business day following the date on which it is so mailed.
Section 4.7. GOVERNING LAW. This agreement shall be governed by and
construed under the laws of the State of Texas without regard to such state's
provisions pertaining to choice of law.
Section 4.8. AMENDMENT. This Agreement, including any Schedules or
Exhibits hereto and all other agreements and documents executed in connection
herewith, constitutes the entire agreement among the parties hereto with
respect to the subject hereof and no amendment, alteration or modification of
the Agreement shall be valid unless in each instance such amendment,
alteration or modification is expressed in a written instrument duly executed
by each party hereto.
Section 4.9. COUNTERPARTS. This Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be
deemed to be an original, and all such counterparts shall constitute one and
the same instrument.
Section 4.10. EXHIBITS AND SCHEDULES. The exhibits and schedules to
this Agreement, as amended or modified from time to time, are hereby
incorporated and made a part hereof and are an integral part of this
Agreement.
Section 4.11. NO THIRD PARTY BENEFICIARIES. Each of the provisions of
this Agreement is for the sole and exclusive benefit of the parties hereto,
respectively, as their interests shall appear, and shall not be deemed to be
for the benefit of any other person or entity or group of persons or entities.
Section 4.12. .SURVIVAL. This Agreement, and the representations and
warranties contained herein, shall survive the Purchase and shall not merge
into the purchase documents.
Section 4.13. SUCCESSORS AND ASSIGNS. This Agreement shall bind and
inure to the benefit of each party hereto, and to each party's successors,
assigns, agents and representatives.
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Section 4.14. SEVERABILITY CLAUSE. Any part, provision, representation
or warranty of this Agreement that is prohibited or that is held to be void
or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions.
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IN WITNESS WHEREOF, each party has caused this instrument to be signed
in its corporate name on its behalf by its proper officials duly authorized.
AEGIS MORTGAGE CORPORATION
Servicer
By
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Name:
Title:
AEGIS INVESTMENT TRUST
Owner
By
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Name:
Title:
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