EXHIBIT 99.1
XXXXX FARGO BANK, N.A.,
as RMBS Master Servicer and Securities Administrator,
AMERICAN HOME MORTGAGE TRUST 2005-1,
as Issuer
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Indenture Trustee
MASTER SERVICING AGREEMENT
Dated as of March 23, 2005
Mortgage Loans
American Home Mortgage Investment Trust 2005-1
TABLE OF CONTENTS
PAGE
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ARTICLE I
Definitions
Section 1.01 Definitions.................................................................................6
Section 1.02 Other Definitional Provisions...............................................................6
Section 1.03 Interest Calculations.......................................................................7
ARTICLE II
Representations and Warranties
Section 2.01 Representations and Warranties Regarding the RMBS Master Servicer...........................8
Section 2.02 Existence...................................................................................9
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01 RMBS Master Servicer to Assure Servicing...................................................10
Section 3.02 Monitoring of RMBS Servicer................................................................12
Section 3.03 Fidelity Bond..............................................................................13
Section 3.04 Liability of the RMBS Master Servicer......................................................13
Section 3.05 Assumption or Termination of Subservicing Agreements by Indenture Trustee..................13
Section 3.06 Collection of Mortgage Loan Payments.......................................................14
Section 3.07 Withdrawals from the Securities Administrator Collection Account...........................16
Section 3.08 Reserved...................................................................................18
Section 3.09 Access to Certain Documentation and Information Regarding the Mortgage Loans...............18
Section 3.10 Reserved...................................................................................19
Section 3.11 Reserved...................................................................................19
Section 3.12 Reserved...................................................................................19
Section 3.13 Reserved...................................................................................19
Section 3.14 Reserved...................................................................................19
Section 3.15 Master Servicing Compensation..............................................................19
Section 3.16 Annual Officer's Certificate as to Compliance..............................................19
Section 3.17 Annual Independent Public Accountant's Servicing Report....................................20
ARTICLE IV
ADVANCES; COMPENSATING INTEREST; REPORTING
Section 4.01 Reserved...................................................................................21
Section 4.02 Reserved...................................................................................21
Section 4.03 Reserved...................................................................................21
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Section 4.04 Advances...................................................................................21
Section 4.05 Compensating Interest Payments.............................................................21
Section 4.06 Exchange Act Reporting.....................................................................21
ARTICLE V
The RMBS Master Servicer
Section 5.01 Liability of the RMBS Master Servicer......................................................24
Section 5.02 Merger or Consolidation of or Assumption of the Obligations of the RMBS Master Servicer....24
Section 5.03 Limitation on Liability of the RMBS Master Servicer and Others.............................24
Section 5.04 RMBS Master Servicer Not to Resign.........................................................25
Section 5.05 Delegation of Duties.......................................................................25
Section 5.06 Indemnification............................................................................26
ARTICLE VI
Default
Section 6.01 Servicing Default..........................................................................26
Section 6.02 Indenture Trustee to Act; Appointment of Successor.........................................29
Section 6.03 Notification to Noteholders................................................................30
Section 6.04 Waiver of Defaults.........................................................................30
ARTICLE VII
Miscellaneous Provisions
Section 7.01 Amendment..................................................................................31
Section 7.02 GOVERNING LAW..............................................................................31
Section 7.03 Notices....................................................................................31
Section 7.04 Severability of Provisions.................................................................32
Section 7.05 Third-Party Beneficiaries..................................................................32
Section 7.06 Counterparts...............................................................................33
Section 7.07 Effect of Headings and Table of Contents...................................................33
Section 7.08 Termination................................................................................33
Section 7.09 No Petition................................................................................33
Section 7.10 No Recourse................................................................................33
Section 7.11 Consent to Jurisdiction....................................................................33
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EXHIBIT A - RMBS MORTGAGE LOAN SCHEDULE......................................A-1
EXHIBIT B - FORM OF REQUEST FOR RELEASE......................................B-1
EXHIBIT C-1 - RESERVED.......................................................C-1
EXHIBIT C-2 - FORM OF FORM CERTIFICATION TO BE PROVIDED BY
THE SECURITIES ADMINISTRATOR WITH FORM 10-K......................C-2
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This Master Servicing Agreement, dated as of March 23, 2005, among
Xxxxx Fargo Bank, N.A., as RMBS Master Servicer (the "RMBS Master Servicer") and
as securities administrator (in such capacity, the "Securities Administrator"),
American Home Mortgage Investment Trust 2005-1, as Issuer (the "Issuer") and
Deutsche Bank National Trust Company, as Indenture Trustee (the "Indenture
Trustee").
W I T N E S S E T H T H A T :
-------------------------------
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement
and the related Group I, Group II, Group III, Group IV, Group V, Group VI, Group
VII, Group VIII and Group IX Subsequent Mortgage Loan Purchase Agreement,
American Home Mortgage Securities LLC (the "Company" or the "Depositor") will
acquire the Mortgage Loans and the related Group I, Group II, Group III, Group
IV, Group V, Group VI, Group VII, Group VIII and Group IX Subsequent Mortgage
Loans;
WHEREAS, the Company will create American Home Mortgage Investment
Trust 2005-1, a Delaware statutory trust, and will transfer the Mortgage Loans
and the related Subsequent Mortgage Loans and all of its rights under the
Mortgage Loan Purchase Agreement and the related Group I, Group II, Group III,
Group IV, Group V, Group VI, Group VII, Group VIII and Group IX Subsequent
Mortgage Loan Purchase Agreement to the Issuer;
WHEREAS, pursuant to the terms of an Amended and Restated Trust
Agreement dated as of March 23, 2005 (the "Trust Agreement") among the Company,
as depositor, Wilmington Trust Company, as owner trustee (the "Owner Trustee")
and the Securities Administrator, the Company will convey the Mortgage Loans to
the Issuer in exchange for the Certificates (as defined below);
WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer will
issue and transfer to or at the direction of the Depositor, the Trust
Certificates, 2005-1 (the "Certificates");
WHEREAS, pursuant to the terms of an Indenture dated as of March 23,
2005 (the "Indenture") among the Issuer, the Securities Administrator and
Deutsche Bank National Trust Company as Indenture Trustee, the Issuer will
pledge the Mortgage Loans and issue and transfer to or at the direction of the
Company the Mortgage-Backed Notes, Series 2005-1, Class I-A-1, Class I-A-2,
Class I-A-3, Class II-A-1, Class II-A-2, Class III-A-1, Class III-A-2, Class
IV-A-1, Class IV-A-2, Class V-A-1, Class V-A-2, Class VI-A, Class VII-A-1, Class
VII-A-2, Class VIII-A-1, Class VIII-A-2, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class B-1, Class VIII-M-1,
Class VIII-M-2, Class VIII-M-3, Class VIII-M-4, Class VIII-M-5, Class VIII-M-6,
Class IX-A-1, Class B and Class N Notes; and
WHEREAS, pursuant to the terms of this Master Servicing Agreement, the
RMBS Master Servicer will master service the Mortgage Loans set forth on the
RMBS Mortgage Loan Schedule attached hereto as Exhibit A for the benefit of the
holders of the Class I-A-1, Class I-A-2, Class I-A-3, Class II-A-1, Class
II-A-2, Class III-A-1, Class III-A-2, Class IV-A-1, Class IV-A-2, Class V-A-1,
Class V-A-2, Class VI-A, Class VII-A-1, Class VII-A-2, Class
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VIII-A-1, Class VIII-A-2, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8, Class B-1, Class VIII-M-1, Class VIII-M-2,
Class VIII-M-3, Class VIII-M-4, Class VIII-M-5, Class VIII-M-6, Class B and
Class N Notes (collectively, the "Notes");
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS.
For all purposes of this Master Servicing Agreement, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in the Definitions contained in Appendix A to the Indenture which
is incorporated by reference herein. All other capitalized terms used herein
shall have the meanings specified herein.
Section 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Master Servicing Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein.
(b) As used in this Master Servicing Agreement and in any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms not defined in this Master Servicing Agreement or in any such
certificate or other document, and accounting terms partly defined in this
Master Servicing Agreement or in any such certificate or other document, to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions of
accounting terms in this Master Servicing Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Master Servicing Agreement or in any such certificate or other document shall
control.
(c) The words "hereof," "herein," "hereunder" and words
of similar import when used in this Master Servicing Agreement shall refer to
this Master Servicing Agreement as a whole and not to any particular provision
of this Master Servicing Agreement; Section and Exhibit references contained in
this Master Servicing Agreement are references to Sections and Exhibits in or to
this Master Servicing Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation".
(d) The definitions contained in this Master Servicing
Agreement are applicable to the singular as well as the plural forms of such
terms and to the masculine as well as the feminine and neuter genders of such
terms.
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(e) Any agreement, instrument or statute defined or
referred to herein or in any instrument or certificate delivered in connection
herewith means such agreement, instrument or statute as from time to time
amended, modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments incorporated
therein; references to a Person are also to its permitted successors and
assigns.
Section 1.03 INTEREST CALCULATIONS.
All calculations of interest hereunder that are made in respect of the
Stated Principal Balance of a Mortgage Loan shall be made on the basis of a
360-day year consisting of twelve 30-day months, notwithstanding the terms of
the related Mortgage Note and Mortgage.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01 REPRESENTATIONS AND WARRANTIES REGARDING THE RMBS MASTER
SERVICER.
The RMBS Master Servicer represents and warrants to the Issuer and for
the benefit of the Indenture Trustee, as pledgee of the Mortgage Loans and the
Noteholders, as of the Cut-off Date and the Closing Date, that:
(i) The RMBS Master Servicer is a national banking
association duly organized, validly existing and in good standing under
the laws of the Untied States of America and has the corporate power to
own its assets and to transact the business in which it is currently
engaged. The RMBS Master Servicer is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in
which the character of the business transacted by it or properties
owned or leased by it requires such qualification and in which the
failure to so qualify would have a material adverse effect on the
business, properties, assets, or condition (financial or other) of the
RMBS Master Servicer or the validity or enforceability of this Master
Servicing Agreement;
(ii) The RMBS Master Servicer has the power and authority
to make, execute, deliver and perform this Master Servicing Agreement
and all of the transactions contemplated under this Master Servicing
Agreement, and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Master Servicing
Agreement. When executed and delivered, this Master Servicing Agreement
will constitute the legal, valid and binding obligation of the RMBS
Master Servicer enforceable in accordance with its terms, except as
enforcement of such terms may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and by the availability of equitable remedies;
(iii) The RMBS Master Servicer is not required to obtain
the consent of any other Person or any consent, license, approval or
authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Master Servicing Agreement, except for such consent, license, approval
or authorization, or registration or declaration, as shall have been
obtained or filed, as the case may be;
(iv) The execution and delivery of this Master Servicing
Agreement and the performance of the transactions contemplated hereby
by the RMBS Master Servicer will not violate any provision of any
existing law or regulation or any order or decree of any court
applicable to the RMBS Master Servicer or any provision of the
certificate of incorporation or bylaws of the RMBS Master Servicer, or
constitute a material breach of any mortgage, indenture, contract or
other agreement to which the RMBS Master Servicer is a party or by
which the RMBS Master Servicer may be bound; and
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(v) No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending
(other than litigation with respect to which pleadings or documents
have been filed with a court, but not served on the RMBS Master
Servicer), or to the knowledge of the RMBS Master Servicer threatened,
against the RMBS Master Servicer or any of its properties or with
respect to this Master Servicing Agreement or the Notes or the
Certificates which, to the knowledge of the RMBS Master Servicer, has a
reasonable likelihood of resulting in a material adverse effect on the
transactions contemplated by this Master Servicing Agreement.
The foregoing representations and warranties shall survive any
termination of the RMBS Master Servicer hereunder.
Section 2.02 EXISTENCE.
The Issuer will keep in full effect its existence, rights and
franchises as a statutory trust under the laws of the State of Delaware (unless
it becomes, or any successor Issuer hereunder is or becomes, organized under the
laws of any other state or of the United States of America, in which case the
Issuer will keep in full effect its existence, rights and franchises under the
laws of such other jurisdiction) and will obtain and preserve its qualification
to do business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Master Servicing
Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING OFMORTGAGE LOANS
Section 3.01 RMBS MASTER SERVICER TO ASSURE SERVICING.
The RMBS Master Servicer shall supervise, monitor and oversee the
obligations of the RMBS Servicer to service and administer the Mortgage Loans in
accordance with the terms of the RMBS Servicing Agreement and shall have full
power and authority to do any and all things which it may deem necessary or
desirable in connection with such master servicing and administration. In
performing its obligations hereunder, the RMBS Master Servicer shall act in a
manner consistent with Accepted Master Servicing Practices. Furthermore, the
RMBS Master Servicer shall oversee and consult with the RMBS Servicer as
necessary from time-to-time to carry out the RMBS Master Servicer's obligations
hereunder, shall receive, review and evaluate all reports, information and other
data provided to the RMBS Master Servicer by the RMBS Servicer and shall cause
the RMBS Servicer to perform and observe the covenants, obligations and
conditions to be performed or observed by such RMBS Servicer under the RMBS
Servicing Agreement. The RMBS Master Servicer shall independently and separately
monitor the RMBS Servicer's servicing activities with respect to the Mortgage
Loans, reconcile the results of such monitoring with such information provided
in the previous sentence on a monthly basis and coordinate corrective
adjustments to the RMBS Servicer's and RMBS Master Servicer's records, and based
on such reconciled and corrected information, the RMBS Master Servicer shall
provide such information to the Securities Administrator as shall be necessary
in order for it to prepare the statements specified in Section 7.05 of the
Indenture, and prepare any other information and statements required to be
forwarded by the RMBS Master Servicer hereunder. The RMBS Master Servicer shall
reconcile the results of its Mortgage Loan monitoring with the actual
remittances of the RMBS Servicer pursuant to the RMBS Servicing Agreement. The
parties hereto acknowledge that the RMBS Master Servicer will have no obligation
to oversee or supervise the activities of the HELOC Servicer or the HELOC
Back-Up Servicer in connection with the servicing of the HELOC Mortgage Loans,
and under no circumstances will the RMBS Master Servicer have any duty to become
the successor to either the HELOC Servicer or the HELOC Back-Up Servicer.
The Indenture Trustee shall furnish the RMBS Servicer and the RMBS
Master Servicer with any powers of attorney and other documents in form as
provided to it necessary or appropriate to enable the RMBS Servicer and the RMBS
Master Servicer to service and administer the related Mortgage Loans and REO
Property. The Indenture Trustee shall not be liable for the RMBS Servicer's or
the RMBS Master Servicer's use or misuse of such powers of attorney.
The Indenture Trustee shall execute and deliver to the RMBS Servicer or
the RMBS Master Servicer, as applicable based on the requesting party, any court
pleadings, requests for trustee's sale or other documents necessary or
reasonably desirable to (i) the foreclosure or trustee's sale with respect to a
Mortgaged Property; (ii) any legal action brought to obtain
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judgment against any Mortgagor on the Mortgage Note or Security Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or Security Instrument or
otherwise available at law or equity.
The relationship of the RMBS Master Servicer (and of any successor to
the RMBS Master Servicer under this Agreement) to the Indenture Trustee under
this Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent.
To the extent such matters are within the control of the RMBS Master
Servicer, the RMBS Master Servicer may not consent to the placing of a lien
senior to that of the Mortgage on the related Mortgaged Property.
To the extent such matters are within the control of the RMBS Master
Servicer, notwithstanding the provisions of Subsection 3.01(a), the RMBS Master
Servicer shall not take any action inconsistent with the interests of the
Indenture Trustee or the Noteholders or with the rights and interests of the
Indenture Trustee or the Noteholders under this Master Servicing Agreement.
The RMBS Master Servicer shall master service the Mortgage Loans and
shall have full power and authority to do any and all things that it may deem
necessary or desirable in connection with the master servicing and
administration of the Mortgage Loans, including but not limited to the power and
authority (i) to execute and deliver, on behalf of the Issuer, Noteholders and
the Indenture Trustee, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages, (iii) to collect any
Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate foreclosure
or other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan, in each case, in accordance with the provisions of this Master
Servicing Agreement and the RMBS Servicing Agreement, as applicable. The
Indenture Trustee shall furnish the RMBS Master Servicer, upon written request
from a Servicing Officer, with any powers of attorney empowering the RMBS Master
Servicer or the RMBS Servicer to execute and deliver instruments of satisfaction
or cancellation, or of partial or full release or discharge, and to foreclose
upon or otherwise liquidate Mortgaged Property, and to appeal, prosecute or
defend in any court action relating to the Mortgage Loans or the Mortgaged
Property, in accordance with this Master Servicing Agreement and the RMBS
Servicing Agreement, and the Indenture Trustee shall execute and deliver such
other documents, as the RMBS Master Servicer may request, to enable the RMBS
Master Servicer to master service and administer the Mortgage Loans and carry
out its duties hereunder, in each case in accordance with Accepted Master
Servicing Practices (and the Indenture Trustee shall have no liability for use
or misuse of any such powers of attorney by the RMBS Master Servicer or the RMBS
Servicer). If the RMBS Master Servicer or the Indenture Trustee has been advised
that it is likely that the laws of the state in which action is to be taken
prohibit such action if taken in the name of the Indenture Trustee or that the
Indenture Trustee would be adversely affected under the "doing business" or tax
laws of such state if such action is taken in its name, the RMBS Master Servicer
shall join with the Indenture Trustee in the appointment of a co-trustee.
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Section 3.02 MONITORING OF RMBS SERVICER.
(a) The RMBS Master Servicer shall be responsible for
reporting to the Issuer, the Indenture Trustee and the Depositor the compliance
by the RMBS Servicer with its duties under the RMBS Servicing Agreement. In the
review of the RMBS Servicer's activities, the RMBS Master Servicer may rely upon
an officer's certificate of the RMBS Servicer (or similar document signed by an
officer of the RMBS Servicer) with regard to such RMBS Servicer's compliance
with the terms of the RMBS Servicing Agreement. In the event that the RMBS
Master Servicer, in its judgment, determines that the RMBS Servicer should be
terminated in accordance with the RMBS Servicing Agreement, or that a notice
should be sent pursuant to the RMBS Servicing Agreement with respect to the
occurrence of an event that, unless cured, would constitute grounds for such
termination, the RMBS Master Servicer shall notify the Depositor, the Issuer and
the Indenture Trustee thereof and the RMBS Master Servicer shall issue such
notice or take such other action as it deems appropriate. In addition, upon the
occurrence of any RMBS Servicing Trigger Event, the RMBS Master Servicer shall
terminate the rights and responsibilities of the RMBS Servicer under the RMBS
Servicing Agreement; provided, however, that in the event that the RMBS Servicer
is rated "SQ2" or better by Moody's on any date, the RMBS Servicing Trigger
Event shall no longer apply to the RMBS Servicer.
(b) The RMBS Master Servicer, for the benefit of the
Issuer, the Indenture Trustee and the Noteholders, shall enforce the obligations
of the RMBS Servicer under the RMBS Servicing Agreement, and shall, in the event
that the RMBS Servicer fails to perform its obligations in accordance with the
RMBS Servicing Agreement, subject to the preceding paragraph, terminate the
rights and obligations of the RMBS Servicer thereunder and act as servicer of
the related Mortgage Loans or cause a successor RMBS Servicer selected by the
RMBS Master Servicer to assume the obligations of the RMBS Servicer under the
RMBS Servicing Agreement; provided, however, it is understood and acknowledged
by the parties hereto that there will be a period of transition (not to exceed
60 days) before the actual servicing functions can be fully transferred to such
successor RMBS Servicer; provided, however, that in the event that the RMBS
Servicer is rated "SQ2" or better by Moody's on any date, then such transition
period may not exceed 90 days. Such enforcement, including, without limitation,
the legal prosecution of claims, termination of the RMBS Servicing Agreement and
the pursuit of other appropriate remedies, shall be in such form and carried out
to such an extent and at such time as the RMBS Master Servicer, in its good
faith business judgment, would require were it the owner of the related Mortgage
Loans. Except as otherwise provided in Subsection (c) below, the RMBS Master
Servicer shall pay the costs of such enforcement at its own expense, provided
that the RMBS Master Servicer shall not be required to prosecute or defend any
legal action except to the extent that the RMBS Master Servicer shall have
received reasonable indemnity for its costs and expenses in pursuing such
action.
(c) To the extent that the costs and expenses of the RMBS
Master Servicer related to any termination of the RMBS Servicer, appointment of
a successor RMBS Servicer or the transfer and assumption of servicing by the
RMBS Master Servicer with respect to the RMBS Servicing Agreement (including,
without limitation, (i) all legal costs and expenses and all due diligence costs
and expenses associated with an evaluation of the potential termination of the
RMBS Servicer as a result of an event of default by the RMBS Servicer and (ii)
all costs and expenses associated with the complete transfer of servicing,
including all servicing files and all
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servicing data and the completion, correction or manipulation of such servicing
data as may be required by the successor servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the successor
servicer to service the Mortgage Loans in accordance with the RMBS Servicing
Agreement) are not fully and timely reimbursed by the terminated RMBS Servicer,
the RMBS Master Servicer shall be entitled to reimbursement of such costs and
expenses from the Securities Administrator Collection Account.
(d) The RMBS Master Servicer shall require the RMBS
Servicer to comply with the remittance requirements and other obligations set
forth in the RMBS Servicing Agreement.
(e) If the RMBS Master Servicer acts as RMBS Servicer, it
will not assume liability for the representations and warranties of the RMBS
Servicer, if any, that it replaces.
Section 3.03 FIDELITY BOND.
The RMBS Master Servicer, at its expense, shall maintain in effect a
blanket fidelity bond and an errors and omissions insurance policy, affording
coverage with respect to all directors, officers, employees and other Persons
acting on such RMBS Master Servicer's behalf, and covering errors and omissions
in the performance of the RMBS Master Servicer's obligations hereunder. The
errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 3.04 LIABILITY OF THE RMBS MASTER SERVICER.
The RMBS Master Servicer shall be liable in accordance herewith only to
the extent of the obligations specifically imposed upon and undertaken by it
herein.
Section 3.05 ASSUMPTION OR TERMINATION OF SUBSERVICING AGREEMENTS BY
INDENTURE TRUSTEE.
(a) If the Indenture Trustee, as successor RMBS Master
Servicer, or another successor RMBS Master Servicer shall assume the master
servicing obligations of the RMBS Master Servicer in accordance with Section
6.02 below, the Indenture Trustee, to the extent necessary to permit the
Indenture Trustee to carry out the provisions of Section 6.02 with respect to
the Mortgage Loans, shall succeed to all of the rights and obligations of the
RMBS Master Servicer under the RMBS Servicing Agreement. In such event, the
Indenture Trustee or its designee as the successor master servicer shall be
deemed to have assumed all of the RMBS Master Servicer's rights and obligations
therein and to have replaced the RMBS Master Servicer as a party to such RMBS
Servicing Agreement to the same extent as if such RMBS Servicing Agreement had
been assigned to the Indenture Trustee or its designee as a successor master
servicer, except that the Indenture Trustee or its designee as a successor
master servicer shall not be deemed to have assumed any obligations or
liabilities of the RMBS Master Servicer arising prior to such assumption (other
than the obligation to make any Monthly Advances) and the RMBS Master Servicer
shall not thereby be relieved of any liability or obligations under such RMBS
Servicing Agreement arising prior to such assumption. Nothing in the foregoing
shall be deemed to entitle the Indenture Trustee or its designee as a successor
master servicer at any time
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to receive any portion of the servicing compensation provided under Section 3.15
except for the RMBS Master Servicer Compensation.
(b) In the event that the Indenture Trustee, as successor
RMBS Master Servicer, or another successor RMBS Master Servicer assumes the
servicing obligations of the RMBS Master Servicer under Section 6.02, upon the
reasonable request of the Indenture Trustee or such successor RMBS Master
Servicer, the RMBS Master Servicer shall at its own expense (or the expense of
the Trust, if the RMBS Master Servicer fails to do so) deliver to the Indenture
Trustee, or to such successor RMBS Master Servicer, photocopies of all
documents, files and records, electronic or otherwise, relating to the RMBS
Servicing Agreement and the related Mortgage Loans or REO Property then being
serviced and an accounting of amounts collected and held by it, if any, and will
otherwise cooperate and use its reasonable efforts to effect the orderly and
efficient transfer of the RMBS Servicing Agreement, or responsibilities
hereunder to the Indenture Trustee, as successor RMBS Master Servicer, or to
such other successor RMBS Master Servicer.
Section 3.06 COLLECTION OF MORTGAGE LOAN PAYMENTS.
(a) The RMBS Master Servicer will coordinate and monitor
remittances by the RMBS Servicer to it with respect to the Mortgage Loans in
accordance with this Master Servicing Agreement.
(b) The RMBS Master Servicer shall enforce the obligation
of the RMBS Servicer to establish and maintain a Protected Account in accordance
with the RMBS Servicing Agreement, with records to be kept with respect thereto
on a Mortgage Loan by Mortgage Loan basis, into which account shall be deposited
within 48 hours (or as of such other time specified in the RMBS Servicing
Agreement) of receipt, all collections of principal and interest on any Mortgage
Loan and any REO Property received by the RMBS Servicer, including Principal
Prepayments, Insurance Proceeds, Liquidation Proceeds, and advances made from
the RMBS Servicer's own funds (less servicing compensation as permitted by the
RMBS Servicing Agreement in the case of the RMBS Servicer) and all other amounts
to be deposited in the Protected Account. The RMBS Servicer is hereby authorized
to make withdrawals from and deposits to the Protected Account for purposes
required or permitted by this Master Servicing Agreement. To the extent provided
in the RMBS Servicing Agreement, the Protected Account shall be an Eligible
Account and segregated on the books of such institution in the name of the
Indenture Trustee for the benefit of the Noteholders.
(c) To the extent provided in the RMBS Servicing
Agreement, amounts on deposit in the Protected Account may be invested in
Eligible Investments in the name of the Indenture Trustee for the benefit of
Noteholders and, except as provided in the preceding paragraph, not commingled
with any other funds. Such Eligible Investments shall mature, or shall be
subject to redemption or withdrawal, no later than the date on which such funds
are required to be withdrawn for deposit in the Securities Administrator
Collection Account, and shall be held until required for such deposit. The
income earned from Eligible Investments made pursuant to this Section 3.06 shall
be paid to the RMBS Servicer under the RMBS Servicing Agreement, and the risk of
loss of moneys required to be distributed to the Noteholders resulting from such
investments shall be borne by and be the risk of the RMBS Servicer. The RMBS
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Servicer (to the extent required by the RMBS Servicing Agreement) shall deposit
the amount of any such loss in the Protected Account within two Business Days of
receipt of notification of such loss but not later than the Business Day prior
to the next RMBS Servicer Remittance Date.
(d) The Securities Administrator shall establish a
segregated account in the name of the Indenture Trustee for the benefit of the
Noteholders (the "Securities Administrator Collection Account"), which shall be
an Eligible Account, in which the Securities Administrator shall deposit or
cause to be deposited any amounts representing payments on and any collections
in respect of the Mortgage Loans due subsequent to the Cut-off Date (other than
in respect of the payments referred to in the following paragraph) within
forty-eight (48) hours following receipt thereof, including the following
payments and collections received or made by it (without duplication):
(i) Any amounts withdrawn from the Protected Account and
remitted to the Securities Administrator by the RMBS Servicer;
(ii) Any Monthly Advance and any Compensating Interest
Payments required to be made by the RMBS Master Servicer hereunder;
(iii) Any Insurance Proceeds or Net Liquidation Proceeds
received by or on behalf of the RMBS Master Servicer or which were not
deposited in the Protected Account;
(iv) Any amounts required to be deposited with respect to
losses on investments of deposits in the Protected Account and remitted
to the Securities Administrator by the RMBS Servicer and any amounts
required to be deposited with respect to losses on investments of
deposits in the Securities Administrator Collection Account and
remitted by the RMBS Master Servicer to the Securities Administrator;
and
(v) Any other amounts received by or on behalf of the
RMBS Master Servicer and required to be deposited in the Securities
Administrator Collection Account pursuant to this Agreement.
All amounts deposited to the Securities Administrator Collection Account shall
be held by the Securities Administrator in the name of the Indenture Trustee in
trust for the benefit of the Noteholders in accordance with the terms and
provisions of this Master Servicing Agreement and the Indenture. The
requirements for crediting the Securities Administrator Collection Account shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of (i) prepayment or late
payment charges or assumption, tax service, statement account or payoff,
substitution, satisfaction, release and other like fees and charges, need not be
credited by the RMBS Master Servicer, Securities Administrator or the RMBS
Servicer to the Securities Administrator Collection Account or remitted by the
RMBS Master Servicer or RMBS Servicer to the Securities Administrator for
deposit in the Securities Administrator Collection Account, as applicable. In
the event that the RMBS Master Servicer or RMBS Servicer shall remit or cause to
be remitted to the Securities Administrator for deposit to the Securities
Administrator Collection Account any amount not required to be credited thereto,
the Securities Administrator, upon receipt of a written request
15
therefor signed by a Servicing Officer of the RMBS Master Servicer or RMBS
Servicer, shall promptly transfer such amount to the RMBS Master Servicer or
RMBS Servicer, any provision herein to the contrary notwithstanding.
The amount at any time credited to the Securities Administrator
Collection Account may be invested, in the name of the Indenture Trustee, or its
nominee, for the benefit of the Noteholders, in Eligible Investments as directed
by the Securities Administrator. All Eligible Investments shall mature or be
subject to redemption or withdrawal on or before, and shall be held until, the
next succeeding Payment Date. Any and all investment earnings on amounts on
deposit in the Securities Administrator Collection Account from time to time
shall be for the account of the RMBS Master Servicer. The Securities
Administrator from time to time shall be permitted to withdraw or receive
distribution of any and all investment earnings from the Securities
Administrator Collection Account for payment to the RMBS Master Servicer. The
risk of loss of moneys required to be distributed to the Noteholders resulting
from such investments shall be borne by and be the risk of the RMBS Master
Servicer. The RMBS Master Servicer shall deposit the amount of any such loss in
the Securities Administrator Collection Account within two Business Days of
receipt of notification of such loss but not later than the Business Day prior
to the Payment Date on which the moneys so invested are required to be
distributed to the Noteholders.
Section 3.07 WITHDRAWALS FROM THE SECURITIES ADMINISTRATOR COLLECTION
ACCOUNT.
(a) The Securities Administrator shall, from time to time
as provided herein, make withdrawals from the Securities Administrator
Collection Account of amounts on deposit therein pursuant to Section 3.06 that
are attributable to the Mortgage Loans for the following purposes (without
duplication):
(i) To remit to the Indenture Trustee, on the Business
Day prior to each Payment Date, for deposit in the Payment Account the
funds in the Securities Administrator Collection Account which are to
be distributed to the Indenture Trustee and the Noteholders and
Certificateholders as provided in the Indenture on a Payment Date;
(ii) to the extent deposited to the Securities
Administrator Collection Account, to reimburse the RMBS Master Servicer
or the RMBS Servicer for previously unreimbursed expenses incurred in
maintaining individual insurance policies pursuant to Sections 3.10 or
3.11 of the RMBS Servicing Agreement, or Liquidation Expenses, paid
pursuant to Section 3.13 of the RMBS Servicing Agreement or otherwise
reimbursable pursuant to the terms of this Master Servicing Agreement,
such withdrawal right being limited to amounts received on the related
Mortgage Loans (other than any Repurchase Price in respect thereto)
which represent late recoveries of the payments for which such advances
were made, or from related Liquidation Proceeds;
(iii) reserved;
(iv) to pay to the Seller, with respect to any Mortgage
Loan or property acquired in respect thereof that has been purchased or
otherwise transferred to the Seller,
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all amounts received thereon and not required to be distributed to
Noteholders as of the date on which the related Purchase Price or
Repurchase Price is determined;
(v) to reimburse the RMBS Master Servicer or the RMBS
Servicer for any Monthly Advance of its own funds or any advance of
such RMBS Servicer's own funds, the right of the RMBS Master Servicer
or RMBS Servicer to reimbursement pursuant to this subclause (v) being
limited to amounts received (including, for this purpose, the
Repurchase Price therefor, Insurance Proceeds and Liquidation Proceeds)
which represent late payments or recoveries of the principal of or
interest on such Mortgage Loan respecting which such Monthly Advance or
advance was made;
(vi) to reimburse the RMBS Master Servicer or the RMBS
Servicer from Insurance Proceeds or Liquidation Proceeds relating to a
particular Mortgage Loan for amounts expended by the RMBS Master
Servicer or such RMBS Servicer pursuant to Section 3.13 of the RMBS
Servicing Agreement in connection with the restoration of the related
Mortgaged Property which was damaged by the Uninsured Cause or in
connection with the liquidation of such Mortgage Loan;
(vii) to pay the RMBS Servicer, as appropriate, from
Liquidation Proceeds or Insurance Proceeds received in connection with
the liquidation of any Mortgage Loan, the amount which the RMBS
Servicer would have been entitled to receive under subclause (ii) of
this Subsection 3.07(a) as servicing compensation on account of each
defaulted Monthly Payment on such Mortgage Loan if paid in a timely
manner by the related Mortgagor, but only to the extent that the
aggregate of Liquidation Proceeds and Insurance Proceeds with respect
to such Mortgage Loan, after any reimbursement to the RMBS Master
Servicer or the RMBS Servicer, pursuant to other subclauses of this
Subsection 3.07(a), exceeds the outstanding Stated Principal Balance of
such Mortgage Loan plus accrued and unpaid interest thereon at the
related Mortgage Rate less the RMBS Servicing Fee Rate to but not
including the date of payment (in any event, the aggregate amount of
servicing compensation received by the RMBS Servicer with respect to
any defaulted Monthly Payment shall not exceed the applicable RMBS
Servicing Fee);
(viii) to reimburse the RMBS Master Servicer or the RMBS
Servicer for any Nonrecoverable Advance previously made, and not
otherwise reimbursed pursuant to this Subsection 3.07(a);
(ix) to reimburse the RMBS Master Servicer or the RMBS
Servicer for any Monthly Advance or advance, after a Realized Loss has
been allocated with respect to the related Mortgage Loan if the Monthly
Advance or advance has not been reimbursed pursuant to clause (v);
(x) to reimburse the RMBS Master Servicer for expenses,
costs and liabilities incurred by and reimbursable to it pursuant to
Sections 3.02 and 5.03, to the extent that the RMBS Master Servicer has
not already reimbursed itself for such amounts from the Securities
Administrator Collection Account;
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(xi) to pay to the RMBS Servicer, as additional servicing
compensation, any Foreclosure Profit to the extent not retained by the
RMBS Servicer;
(xii) to reimburse or pay the RMBS Servicer any such
amounts as are due thereto under the RMBS Servicing Agreement and have
not been retained by or paid to the RMBS Servicer, to the extent
provided in the RMBS Servicing Agreement;
(xiii) to reimburse the Securities Administrator or the RMBS
Master Servicer for expenses, costs and liabilities incurred by or
reimbursable to it pursuant to this Agreement, the Indenture and the
Trust Agreement, to the extent such amounts have not already been paid
or reimbursed to such party from the Securities Administrator
Collection Account;
(xiv) to withdraw any other amount deposited in the
Securities Administrator Collection Account that was not required to be
deposited therein pursuant to Section 3.06; and
(xv) to clear and terminate the Securities Administrator
Collection Account following a termination of the Trust pursuant to
Section 8.01 of the Trust Agreement.
In connection with withdrawals pursuant to clauses (ii), (iii), (iv), (v), (vi),
(vii) and (ix), the RMBS Master Servicer's entitlement thereto is limited to
collections or other recoveries on the related Mortgage Loan, and the RMBS
Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan
by Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Securities Administrator Collection Account pursuant to such clauses.
(b) Notwithstanding the provisions of this Section 3.07,
the RMBS Master Servicer shall allow the RMBS Servicer to deduct from amounts
received by it or from the related account maintained by the RMBS Servicer,
prior to deposit in the Securities Administrator Collection Account, any portion
to which such RMBS Servicer is entitled hereunder as servicing compensation
(including income on Eligible Investments) or reimbursement of any reimbursable
Monthly Advances or Servicing Advances made by such RMBS Servicer.
Section 3.08 RESERVED.
Section 3.09 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION
REGARDING THE MORTGAGE LOANS.
The RMBS Master Servicer shall provide, and shall cause the RMBS
Servicer to provide, to the Indenture Trustee and the Owner Trustee access to
the documentation regarding the related Mortgage Loans and REO Property and to
the Noteholders, the FDIC, and the supervisory agents and examiners of the FDIC
access to the documentation regarding the related Mortgage Loans required by
applicable regulations, such access being afforded without charge but only upon
reasonable request and during normal business hours at the offices of the RMBS
Master Servicer or the RMBS Servicer that are designated by these entities;
PROVIDED, HOWEVER, that, unless otherwise required by law, the RMBS Master
Servicer or the RMBS Servicer shall not be required to provide access to such
documentation if the provision thereof would violate the legal
18
right to privacy of any Mortgagor; PROVIDED, FURTHER, HOWEVER, that the
Indenture Trustee and the Owner Trustee shall coordinate their requests for such
access so as not to impose an unreasonable burden on, or cause an unreasonable
interruption of, the business of the RMBS Master Servicer or the RMBS Servicer.
The RMBS Master Servicer and the RMBS Servicer shall allow representatives of
the above entities to photocopy any of the documentation and shall provide
equipment for that purpose at a charge that covers their own actual
out-of-pocket costs.
Section 3.10 RESERVED.
Section 3.11 RESERVED.
Section 3.12 RESERVED.
Section 3.13 RESERVED.
Section 3.14 RESERVED.
Section 3.15 MASTER SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, the
RMBS Master Servicer shall be entitled to receive all income and gain realized
from any investment of funds in the Securities Administrator Collection Account
for the performance of its activities hereunder (the "RMBS Master Servicer
Compensation").
(b) The RMBS Master Servicer shall be required to pay all
expenses it incurs in connection with its master servicing activities under this
Master Servicing Agreement and shall not be entitled in connection with its
master servicing activities under this Master Servicing Agreement to
reimbursement except as provided in this Master Servicing Agreement.
Section 3.16 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
(a) The RMBS Master Servicer shall deliver to the Issuer,
the Indenture Trustee and the Rating Agencies on or before March 1 of each year,
commencing on March 1, 2006, an Officer's Certificate, certifying that with
respect to the period ending December 31 of the prior year: (i) such Servicing
Officer has reviewed the activities of such RMBS Master Servicer during the
preceding calendar year or portion thereof and its performance under this Master
Servicing Agreement, (ii) to the best of such Servicing Officer's knowledge,
based on such review, such RMBS Master Servicer has performed and fulfilled its
duties, responsibilities and obligations under this Master Servicing Agreement
in all material respects throughout such year, or, if there has been a default
in the fulfillment of any such duties, responsibilities or obligations,
specifying each such default known to such Servicing Officer and the nature and
status thereof, (iii) nothing has come to the attention of such Servicing
Officer to lead such Servicing Officer to believe that the RMBS Servicer has
failed to perform any of its duties, responsibilities and obligations under the
RMBS Servicing Agreement in all material respects throughout such year, or, if
there has been a material default in the performance or fulfillment of any such
duties, responsibilities or obligations, specifying each such default known to
such Servicing Officer and the nature and status thereof.
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(b) Copies of such statements shall be provided to any
Noteholder upon request, by the RMBS Master Servicer or by the Indenture Trustee
at the RMBS Master Servicer's expense if the RMBS Master Servicer failed to
provide such copies (unless (i) the RMBS Master Servicer shall have failed to
provide the Indenture Trustee with such statement or (ii) the Indenture Trustee
shall be unaware of the RMBS Master Servicer's failure to provide such
statement).
Section 3.17 ANNUAL INDEPENDENT PUBLIC ACCOUNTANT'S SERVICING REPORT.
If the RMBS Master Servicer has, during the course of any fiscal year,
directly serviced any of the Mortgage Loans, then the RMBS Master Servicer at
its expense shall cause a nationally recognized firm of independent certified
public accountants to furnish a statement to the Issuer, the Indenture Trustee,
the Rating Agencies and the Depositor on or before March 1 of each year, to the
effect that, with respect to the most recently ended fiscal year, such firm has
examined certain records and documents relating to the RMBS Master Servicer's
performance of its servicing obligations under this Master Servicing Agreement
and pooling and servicing and trust agreements in material respects similar to
this Master Servicing Agreement and to each other and that, on the basis of such
examination conducted substantially in compliance with the audit program for
mortgages serviced for Xxxxxxx Mac or the Uniform Single Attestation Program for
Mortgage Bankers, such firm is of the opinion that the RMBS Master Servicer's
activities have been conducted in compliance with this Master Servicing
Agreement, or that such examination has disclosed no material items of
noncompliance except for (i) such exceptions as such firm believes to be
immaterial, (ii) such other exceptions as are set forth in such statement and
(iii) such exceptions that the Uniform Single Attestation Program for Mortgage
Bankers or the Audit Program for Mortgages Serviced by Xxxxxxx Mac requires it
to report. Copies of such statements shall be provided to any Noteholder upon
request by the RMBS Master Servicer, or by the Indenture Trustee at the expense
of the RMBS Master Servicer if the RMBS Master Servicer shall fail to provide
such copies. If such report discloses exceptions that are material, the RMBS
Master Servicer shall advise the Indenture Trustee whether such exceptions have
been or are susceptible of cure, and will take prompt action to do so.
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ARTICLE IV
ADVANCES; COMPENSATING INTEREST; REPORTING
Section 4.01 RESERVED.
Section 4.02 RESERVED.
Section 4.03 RESERVED.
Section 4.04 ADVANCES.
If the Monthly Payment on a Mortgage Loan that was due on a related Due
Date is delinquent other than as a result of application of the Relief Act and
for which the RMBS Servicer was required to make an advance pursuant to the RMBS
Servicing Agreement exceeds the amount deposited in the Securities Administrator
Collection Account which will be used for an advance with respect to such
Mortgage Loan, the RMBS Master Servicer, in its capacity as successor RMBS
Servicer, will deposit in the Securities Administrator Collection Account not
later than the RMBS Master Servicer Remittance Date immediately preceding the
related Payment Date an amount equal to such deficiency, net of the RMBS
Servicing Fee for such Mortgage Loan except to the extent the RMBS Master
Servicer determines any such advance to be a Nonrecoverable Advance. Subject to
the foregoing, the RMBS Master Servicer shall continue to make such advances
through the date that the RMBS Servicer is required to do so under the RMBS
Servicing Agreement. If the RMBS Master Servicer deems an advance to be a
Nonrecoverable Advance, on the Business Day prior to the Payment Date, the RMBS
Master Servicer shall present an Officer's Certificate to the Securities
Administrator (i) stating that the RMBS Master Servicer elects not to make a
Monthly Advance in a stated amount and (ii) detailing the reason it deems the
advance to be a Nonrecoverable Advance.
Section 4.05 COMPENSATING INTEREST PAYMENTS.
The RMBS Master Servicer shall deposit in the Securities Administrator
Collection Account not later than each RMBS Master Servicer Remittance Date an
amount equal to the lesser of (i) the sum of the aggregate amount required to be
paid by the RMBS Servicer under the RMBS Servicing Agreement with respect to
Compensating Interest with respect to the Mortgage Loans for the related
Prepayment Period, and not so paid by the RMBS Servicer and (ii) the RMBS Master
Servicer Compensation for such Payment Date (such amount, the "Compensating
Interest Payment"). The RMBS Master Servicer shall not be entitled to any
reimbursement of any Compensating Interest Payment.
Section 4.06 EXCHANGE ACT REPORTING.
(a) The Securities Administrator and the RMBS Master
Servicer shall reasonably cooperate with the Issuer and the Depositor in
connection with the Trust's satisfying the reporting requirements under the
Exchange Act. The Securities Administrator shall prepare on behalf of the Trust
any Forms 8-K, or other comparable Form containing the same or
21
comparable information or other information mutually agreed upon, described
below and 10-K customary for similar securities as required by the Exchange Act
and the Rules and Regulations of the Commission thereunder. The Depositor shall
sign (or shall cause another entity acceptable to the Commission to sign) such
forms and prepare and sign (or cause another entity acceptable to the Commission
to sign) the Sarbanes Oxley Certification. The Securities Administrator shall
file (via the Commission's Electronic Data Gathering and Retrieval System) such
forms on behalf of the Depositor or Issuer (or such other entity). The Depositor
and the Issuer hereby grant to the Securities Administrator a limited power of
attorney to execute any Form 8-K and file each such document on behalf of the
Depositor and the Issuer. Such power of attorney shall continue until the
earlier of (i) receipt by the Securities Administrator from the Depositor and
the Issuer of written termination of such power of attorney and (ii) the
termination of the Trust. Notwithstanding anything herein or in the Indenture to
the contrary, the Depositor, and not the Securities Administrator, shall be
responsible for executing each Form 10-K filed on behalf of the Trust. Neither
the Master Servicer nor the Securities Administrator shall be responsible for
signing the Sarbanes Oxley Certification.
(b) The Depositor shall prepare and file or cause to be
prepared and filed the initial current report on Form 8-K for the Issuer. Within
15 days after each Distribution Date, a Form 8-K (or other comparable form, as
described above) shall be filed by the Securities Administrator with a copy of
the statement to the Certificateholders for such Distribution Date as an exhibit
thereto. If expressly instructed in writing by the Depositor, the Securities
Administrator shall, in accordance with industry standards, prepare and deliver
to the Depositor for execution a Form 15 Suspension Notice with respect to the
Issuer. Prior to (unless and until a Form 15 Suspension Notice shall have been
filed) March 30th of each year (or such earlier date as may be required or
permitted by the Exchange Act and the Rules and Regulations of the Commission),
the Securities Administrator shall file a Form 10-K, in substance as required by
applicable law or applicable Commission staff's interpretations. The Securities
Administrator shall prepare the Form 10-K and provide the Depositor with the
Form 10-K no later than March 25th of each year. The Depositor shall execute
such Form 10-K upon its receipt and shall provide the original of such executed
Form 10-K to the Securities Administrator no later than March 27th of each year.
Such Form 10-K shall include as exhibits the RMBS Master Servicer's annual
statement of compliance described under Section 3.16 and the accountant's report
described under Section 3.17, the HELOC Back-Up Servicer's annual statement of
compliance and accountant's report as described in the HELOC Back-Up Servicing
Agreement, the HELOC Servicer's annual statement of compliance and accountant's
report as described in the HELOC Servicing Agreement, the RMBS Servicer's annual
statement of compliance and accountant's report as described in the RMBS
Servicing Agreement and the Sarbanes Oxley Certification, in each case to the
extent required and timely delivered to the Securities Administrator. If they
are not so timely delivered, the Securities Administrator shall file an amended
Form 10-K including such documents as exhibits reasonably promptly after they
are delivered to the Securities Administrator. The Securities Administrator
shall have no liability with respect to any failure to properly prepare or file
such periodic reports resulting from or relating to the Securities
Administrator's inability or failure to obtain any information not resulting
from its own negligence or willful misconduct.
(c) In addition, the Securities Administrator shall sign
a certification (in the form attached hereto as Exhibit C-2) for the benefit of
the Depositor and its officers, directors
22
and Affiliates regarding certain aspects of items 1 through 3 of the
Certification (provided, however, that the Securities Administrator shall not
undertake an analysis of any accountant's report attached as an exhibit to the
Form 10-K).
(d) In addition, (i) the Securities Administrator shall
indemnify and hold harmless the Issuer and the Depositor and their officers,
directors and Affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon a failure of the
Securities Administrator to deliver the certification referred to in clause (c)
above, and (ii) the Securities Administrator shall indemnify and hold harmless
the Issuer, the Depositor and their respective officers, directors and
Affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon a breach of the Securities
Administrator's obligations under this Section 4.06 or the Securities
Administrator's negligence, bad faith or willful misconduct in connection
therewith.
(e) Notwithstanding any other provision of the Basic
Documents, the provisions of this Section 4.06 may be amended by the RMBS Master
Servicer, the Issuer, the Securities Administrator and the Indenture Trustee
without the consent of the Securityholders.
23
ARTICLE V
THE RMBS MASTER SERVICER
Section 5.01 LIABILITY OF THE RMBS MASTER SERVICER.
The RMBS Master Servicer shall be liable in accordance herewith only to
the extent of the obligations specifically imposed upon and undertaken by the
RMBS Master Servicer herein.
Section 5.02 MERGER OR CONSOLIDATION OF OR ASSUMPTION OF THE
OBLIGATIONS OF THE RMBS MASTER SERVICER.
Any corporation into which the RMBS Master Servicer may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the RMBS Master Servicer
shall be a party, or any corporation succeeding to the business of the RMBS
Master Servicer, shall be the successor of the RMBS Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
PROVIDED, HOWEVER, that the successor or surviving Person to the RMBS Master
Servicer shall be qualified to sell mortgage loans to and service mortgage loans
for Xxxxxx Xxx or Xxxxxxx Mac.
The RMBS Master Servicer may assign its rights and delegate its duties
and obligations under this Master Servicing Agreement; PROVIDED, that the Person
accepting such assignment or delegation shall be a Person which is qualified to
service mortgage loans on behalf of Xxxxxx Mae or Xxxxxxx Mac, shall have a net
worth of not less than $10,000,000, is reasonably satisfactory to the Indenture
Trustee (as pledgee of the Mortgage Loans) and the Depositor, is willing to
service the Mortgage Loans and executes and delivers to the Indenture Trustee
and the Depositor an agreement, in form and substance reasonably satisfactory to
the Indenture Trustee and the Depositor, which contains an assumption by such
Person of the due and punctual performance and observance of each covenant and
condition to be performed or observed by the RMBS Master Servicer under this
Master Servicing Agreement; PROVIDED, FURTHER, that each Rating Agency's rating
of the applicable Notes in effect immediately prior to such assignment and
delegation will not be qualified, reduced, or withdrawn as a result of such
assignment and delegation (as evidenced by a letter to such effect from each
Rating Agency addressed and delivered to the Indenture Trustee) or considered to
be below investment grade.
Section 5.03 LIMITATION ON LIABILITY OF THE RMBS MASTER SERVICER AND
OTHERS.
Neither the RMBS Master Servicer nor any of the directors or officers
or employees or agents of the RMBS Master Servicer shall be under any liability
to the Company, the Issuer, the Owner Trustee, the Securities Administrator, the
Indenture Trustee or the Noteholders for any action taken or for refraining from
the taking of any action in good faith pursuant to this Master Servicing
Agreement, PROVIDED, HOWEVER, that this provision shall not protect the RMBS
Master Servicer or any such Person against any liability which would otherwise
be imposed by reason of its willful misfeasance, bad faith or gross negligence
in the performance of its duties hereunder or by reason of its reckless
disregard of its obligations and duties hereunder. The RMBS Master
24
Servicer and any director or officer or employee or agent of the RMBS Master
Servicer may rely in good faith on any document of any kind PRIMA FACIE properly
executed and submitted by any Person respecting any matters arising hereunder.
The RMBS Master Servicer and any director or officer or employee or agent of the
RMBS Master Servicer shall be indemnified by the Trust Estate and held harmless
against any loss, liability or expense incurred in connection with any legal
action relating to this Master Servicing Agreement or any other Basic Document
other than any loss, liability or expense incurred by reason of its willful
misfeasance, bad faith or gross negligence in the performance of its duties
hereunder or by reason of its reckless disregard of its obligations and duties
hereunder. The RMBS Master Servicer shall not be under any obligation to appear
in, prosecute or defend any legal action which is not incidental to its duties
to master service the Mortgage Loans in accordance with this Master Servicing
Agreement, and which in its opinion may involve it in any expense or liability;
PROVIDED, HOWEVER, that the RMBS Master Servicer may in its sole discretion
undertake any such action which it may deem necessary or desirable in respect of
this Master Servicing Agreement, and the rights and duties of the parties hereto
and the interests of the Securityholders hereunder. In such event, the
reasonable legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Estate, and the
RMBS Master Servicer shall be entitled to be reimbursed therefor. The RMBS
Master Servicer's right to indemnity or reimbursement pursuant to this Section
5.03 shall survive any resignation or termination of the RMBS Master Servicer
pursuant to Sections 5.04 or 6.01 with respect to any losses, expenses, costs or
liabilities arising prior to such resignation or termination (or arising from
events that occurred prior to such resignation or termination). The RMBS Master
Servicer shall not be liable for any acts or omissions of the RMBS Servicer,
except as otherwise expressly provided herein.
Section 5.04 RMBS MASTER SERVICER NOT TO RESIGN.
Subject to the provisions of Section 5.02, the RMBS Master Servicer
shall not resign from the obligations and duties hereby imposed on it except
upon a determination that the performance of its obligations or duties hereunder
are no longer permissible under applicable law (any such determination
permitting the resignation of the RMBS Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Indenture Trustee). No such
resignation by the RMBS Master Servicer shall become effective until such
successor master servicer shall have assumed the RMBS Master Servicer's
responsibilities and obligations hereunder or another successor RMBS Master
Servicer has been appointed in accordance with Section 6.02 and has accepted
such appointment. Any such resignation shall not relieve the RMBS Master
Servicer of responsibility for any of the obligations specified in Sections 6.01
and 6.02 as obligations that survive the resignation or termination of the RMBS
Master Servicer. The RMBS Master Servicer shall have no claim (whether by
subrogation or otherwise) or other action against any Noteholder for any amounts
paid by the RMBS Master Servicer pursuant to any provision of this Master
Servicing Agreement. Any resignation of the RMBS Master Servicer shall result in
the automatic resignation of the Securities Administrator.
Section 5.05 DELEGATION OF DUTIES.
In the ordinary course of business, the RMBS Master Servicer at any
time may delegate any of its duties hereunder to any Person, including any of
its Affiliates, who agrees to conduct such duties in accordance with standards
comparable to those with which the RMBS Master
25
Servicer complies pursuant to Section 3.01. Such delegation shall not relieve
the RMBS Master Servicer of its liabilities and responsibilities with respect to
such duties and shall not constitute a resignation within the meaning of Section
5.04.
Section 5.06 INDEMNIFICATION.
The RMBS Master Servicer agrees to indemnify the Indenture Trustee, the
Securities Administrator and Owner Trustee (each an "Indemnified Person") for,
and to hold them harmless against, any loss, liability or expense (including
reasonable legal fees and disbursements of counsel) incurred on their part that
may be sustained in connection with, arising out of, or relating to, any claim
or legal action (including any pending or threatened claim or legal action)
relating to this Master Servicing Agreement (i) related to the RMBS Master
Servicer's failure to perform its duties in material compliance with this Master
Servicing Agreement (except as any such loss, liability or expense shall be
otherwise reimbursable pursuant to this Agreement) or (ii) incurred by reason of
the RMBS Master Servicer's willful misfeasance, bad faith or gross negligence in
the performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder, provided, in each case, that with respect to
any such claim or legal action (or pending or threatened claim or legal action),
the Indemnified Person shall have given the RMBS Master Servicer and the
Depositor written notice thereof promptly after such Indemnified Person shall
have with respect to such claim or legal action knowledge thereof. The RMBS
Master Servicer's failure to receive any such notice shall not affect an
Indemnified Persons' right to indemnification hereunder, except to the extent
the RMBS Master Servicer is materially prejudiced by such failure to give
notice. This indemnity shall survive the resignation or removal of the Indenture
Trustee, Owner Trustee, the Securities Administrator and the RMBS Master
Servicer and the termination of this Master Servicing Agreement.
ARTICLE VI
DEFAULT
Section 6.01 SERVICING DEFAULT.
If any one of the following events (each, a "Servicing Default") shall
occur and be continuing:
(i) The RMBS Master Servicer fails to deposit in the
Securities Administrator Collection Account any amount required to be
deposited by the RMBS Master Servicer pursuant to this Master Servicing
Agreement (other than a Monthly Advance), and such failure continues
unremedied for a period of three Business Days after the date upon
which written notice of such failure, requiring the same to be
remedied, shall have been given to the RMBS Master Servicer; or
(ii) The RMBS Master Servicer fails to observe or perform
in any material respect any other material covenants and agreements set
forth in this Master Servicing Agreement to be performed by it, which
covenants and agreements materially affect the rights of Noteholders,
and such failure continues unremedied for a period of 60 days after the
date on which written notice of such failure, properly requiring the
same to be
26
remedied, shall have been given to the RMBS Master Servicer by the
Indenture Trustee or to the RMBS Master Servicer and the Indenture
Trustee by the Holders of Notes aggregating at least 25% of the Note
Principal Balance of the Notes; or
(iii) There is entered against the RMBS Master Servicer a
decree or order by a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator,
receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding up or liquidation of its affairs, and the continuance of any
such decree or order is unstayed and in effect for a period of 60
consecutive days, or an involuntary case is commenced against the RMBS
Master Servicer under any applicable insolvency or reorganization
statute and the petition is not dismissed within 60 days after the
commencement of the case; or
(iv) The RMBS Master Servicer consents to the appointment
of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the RMBS Master Servicer or substantially
all of its property; or the RMBS Master Servicer admits in writing its
inability to pay its debts generally as they become due, files a
petition to take advantage of any applicable insolvency or
reorganization statute, makes an assignment for the benefit of its
creditors, or voluntarily suspends payment of its obligations;
(v) The RMBS Master Servicer assigns or delegates its
duties or rights under this Master Servicing Agreement in contravention
of the provisions permitting such assignment or delegation under
Section 5.04; or
(vi) The RMBS Master Servicer fails to deposit in the
Securities Administrator Collection Account any Monthly Advance (other
than a Nonrecoverable Advance) required to be made by it, and such
failure continues unremedied for a period of one Business Day after the
date upon which written notice of such failure, requiring the same to
be remedied, shall have been given to the RMBS Master Servicer.
then, and in every such case, so long as a Servicing Default shall not have been
remedied by the RMBS Master Servicer, either the Indenture Trustee or the
holders of at least 51% of the aggregate Note Principal Balance of each Class of
Notes may, or may direct the Indenture Trustee to, by written notice then given
to the RMBS Master Servicer, terminate all of the rights and obligations of the
RMBS Master Servicer as master servicer under this Master Servicing Agreement
other than its right to receive master servicing compensation and expenses for
master servicing the Mortgage Loans hereunder during any period prior to the
date of such termination and the Indenture Trustee, subject to written notice to
the Issuer may exercise any and all other remedies available at law or equity.
Any such notice to the RMBS Master Servicer shall also be given to each Rating
Agency, the Company and the Issuer. On or after the receipt by the RMBS Master
Servicer of such written notice, all authority and power of the RMBS Master
Servicer under this Master Servicing Agreement, whether with respect to the
Notes or the Mortgage Loans or otherwise, shall pass to and be vested in the
Indenture Trustee, as successor RMBS Master Servicer, pursuant to and under this
Section 6.01; and, without limitation, the Indenture Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the RMBS
27
Master Servicer, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination.
Notwithstanding the foregoing, the parties hereto and the Securityholders by
their acceptance of any Security, acknowledge and agree that there will be a
period of transition before the actual master servicing functions can be fully
transferred to the Indenture Trustee, as successor RMBS Master Servicer, or to a
successor RMBS Master Servicer appointed by the Indenture Trustee pursuant to
the provisions hereof, provided, that the Indenture Trustee shall use its
reasonable best efforts to succeed to the actual master servicing functions or
find a successor RMBS Master Servicer as soon as possible but no later than 90
days after such termination; provided, that the Indenture Trustee shall continue
to have the right to appoint a successor RMBS Master Servicer after such 90-day
period in accordance with Section 6.02. The RMBS Master Servicer agrees to
cooperate with the Indenture Trustee in effecting the termination of the
responsibilities and rights of the RMBS Master Servicer hereunder, including,
without limitation, the transfer to the Indenture Trustee or other successor
RMBS Master Servicer for administration by it of (i) originals or copies of all
documents of the RMBS Master Servicer reasonably requested by the Indenture
Trustee to enable it to assume the RMBS Master Servicer's duties thereunder and
under the RMBS Servicing Agreement; (ii) the rights and obligations of the RMBS
Master Servicer under the RMBS Servicing Agreement with respect to the Mortgage
Loans; (iii) all cash amounts which shall at the time be deposited by the RMBS
Master Servicer or required to have been deposited by it to the Securities
Administrator Collection Account pursuant to this Agreement or thereafter be
received with respect to the Mortgage Loans; and (iv) all costs or expenses
associated with the complete transfer of all servicing data and the completion,
correction or manipulation of such servicing data as may be required by the
Indenture Trustee or any successor RMBS Master Servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the Indenture
Trustee or other successor RMBS Master Servicer to master service the Mortgage
Loans properly and effectively. All reasonable costs and expenses (including,
but not limited to, attorneys' fees and disbursements) incurred by the Indenture
Trustee or a successor RMBS Master Servicer in connection with its succession as
RMBS Master Servicer, including amending this Master Servicing Agreement to
reflect such succession as RMBS Master Servicer pursuant to this Section 6.01
shall be paid by the predecessor RMBS Master Servicer (or if the predecessor
RMBS Master Servicer is the Indenture Trustee, the terminated RMBS Master
Servicer) upon presentation of reasonable documentation of such costs and
expenses, and if not so paid by the predecessor RMBS Master Servicer, shall be
reimbursed by the Issuer pursuant to Section 6.07 of the Indenture.
Notwithstanding any termination of the activities of the RMBS Master
Servicer hereunder, the RMBS Master Servicer shall be entitled to receive, out
of any late collection of a payment on a Mortgage Loan which was due prior to
the notice terminating the RMBS Master Servicer's rights and obligations
hereunder and received after such notice, that portion to which the RMBS Master
Servicer would have been entitled pursuant to Sections 3.07 and 3.15, and any
other amounts payable to the RMBS Master Servicer hereunder the entitlement to
which arose prior to the termination of its activities hereunder.
The RMBS Master Servicer shall immediately notify the Indenture Trustee
and the Owner Trustee in writing of any Servicing Default hereunder.
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Section 6.02 INDENTURE TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) Within 90 days of the time the RMBS Master Servicer
sends a notice pursuant to Section 5.04, the Indenture Trustee on behalf of the
Noteholders, or other successor appointed in accordance with this Section 6.02,
shall become the successor in all respects to the RMBS Master Servicer in its
capacity as RMBS Master Servicer under this Master Servicing Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the RMBS
Master Servicer by the terms and provisions hereof, including but not limited to
the provisions of Article V. Nothing in this Master Servicing Agreement shall be
construed to permit or require the Indenture Trustee or any other successor RMBS
Master Servicer to (i) be responsible or accountable for any act or omission of
the predecessor RMBS Master Servicer, (ii) fund any losses on any Eligible
Investment directed by any other RMBS Master Servicer, or (iii) be responsible
for the representations and warranties of the RMBS Master Servicer, except as
provided herein; PROVIDED, HOWEVER, that the Indenture Trustee, as successor
RMBS Master Servicer, shall be required to make any Monthly Advances to the
extent that the RMBS Master Servicer failed to make such Monthly Advances, to
the extent such Monthly Advance is not determined by the Indenture Trustee to be
a Nonrecoverable Advance. As compensation therefor, the Indenture Trustee shall
be entitled to such compensation as the RMBS Master Servicer would have been
entitled to hereunder if no such notice of termination had been given.
Notwithstanding the above, (i) if the Indenture Trustee is unwilling to act as
successor RMBS Master Servicer, or (ii) if the Indenture Trustee is legally
unable so to act, the Indenture Trustee on behalf of the Noteholders may (in the
situation described in clause (i)) or shall (in the situation described in
clause (ii)) appoint or petition a court of competent jurisdiction to appoint
any established housing and home finance institution, bank or other mortgage
loan servicer having a net worth of not less than $10,000,000 as the successor
to the RMBS Master Servicer hereunder in the assumption of all or any part of
the responsibilities, duties or liabilities of the RMBS Master Servicer
hereunder; provided that the appointment of any such successor RMBS Master
Servicer will not result in the qualification, reduction or withdrawal of the
ratings assigned to the Notes by the Rating Agencies (as evidenced by a letter
to such effect delivered by the Rating Agencies). Pending appointment of a
successor to the RMBS Master Servicer hereunder, unless the Indenture Trustee is
prohibited by law from so acting or is unwilling to act as such, the Indenture
Trustee shall act in such capacity as hereinabove provided. In connection with
such appointment and assumption, the successor shall be entitled to receive
compensation out of payments on Mortgage Loans in an amount equal to the
compensation which the RMBS Master Servicer would otherwise have received
pursuant to Section 3.15 (or such lesser compensation as the Indenture Trustee
and such successor shall agree). The appointment of a successor RMBS Master
Servicer shall not affect any liability of the predecessor RMBS Master Servicer
which may have arisen under this Master Servicing Agreement prior to its
termination as RMBS Master Servicer (including, without limitation, the
obligation to indemnify the Indenture Trustee pursuant to Section 5.06), nor
shall any successor RMBS Master Servicer be liable for any acts or omissions of
the predecessor RMBS Master Servicer or for any breach by such RMBS Master
Servicer of any of its representations or warranties contained herein or in any
related document or agreement. The Indenture Trustee and such successor shall
take such action, consistent with this Master Servicing Agreement, as shall be
necessary to effectuate any such succession.
29
(b) Any successor, including the Indenture Trustee on
behalf of the Noteholders, to the RMBS Master Servicer as master servicer shall
during the term of its service as master servicer shall (i) continue to master
service and administer the Mortgage Loans for the benefit of the
Securityholders, and (ii) maintain in force a policy or policies of insurance
covering errors and omissions in the performance of its obligations as RMBS
Master Servicer hereunder and a fidelity bond in respect of its officers,
employees and agents to the same extent as the RMBS Master Servicer is so
required pursuant to Section 3.03.
(c) Any successor RMBS Master Servicer, including the
Indenture Trustee on behalf of the Noteholders, shall not be deemed to be in
default or to have breached its duties hereunder if the predecessor RMBS Master
Servicer shall fail to deliver any required deposit to the Securities
Administrator Collection Account or otherwise cooperate with any required
servicing transfer or succession hereunder.
(d) Notwithstanding anything else herein to the contrary,
in no event shall the Indenture Trustee be liable for any master servicing fee
or any differential in the amount of the master servicing fee paid hereunder and
the amount necessary to induce any successor RMBS Master Servicer to act as a
successor RMBS Master Servicer under this Master Servicing Agreement and the
transactions set forth or provided for herein.
Section 6.03 NOTIFICATION TO NOTEHOLDERS.
Upon any termination or appointment of a successor to the RMBS
Master Servicer pursuant to this Article VI or Section 5.04, the Indenture
Trustee shall give prompt written notice thereof to the Noteholders, the Owner
Trustee, the Company, the Issuer and the Rating Agencies.
Section 6.04 WAIVER OF DEFAULTS.
The Indenture Trustee shall transmit by mail to all Noteholders, within
10 days after the occurrence of any Servicing Default known to the Indenture
Trustee, unless such Servicing Default shall have been cured, notice of each
such Servicing Default hereunder of which a Responsible Officer of the Indenture
Trustee has actual knowledge. The holders of at least 51% of the aggregate Note
Principal Balance of each Class of the Notes may waive any default by the RMBS
Master Servicer in the performance of its obligations hereunder and the
consequences thereof, except a default in the making of or the causing to be
made any required distribution on the Notes. Upon any such waiver of a past
default, such default shall be deemed to cease to exist, and any Servicing
Default arising therefrom shall be deemed to have been timely remedied for every
purpose of this Master Servicing Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereon except to the
extent expressly so waived. The RMBS Master Servicer shall give notice of any
such waiver to the Rating Agencies.
30
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 AMENDMENT.
This Master Servicing Agreement may be amended from time to time by the
parties hereto, provided that any amendment does not materially adversely affect
the Securityholders as evidenced by a letter from the Rating Agencies that the
amendment will not result in the downgrading, qualification or withdrawal of the
rating then assigned to the Notes or an Opinion of Counsel (unless the Holders
of Notes representing not less than 51% of the aggregate Note Principal Balance
consents to such amendment).
Section 7.02 GOVERNING LAW.
THIS MASTER SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN THE PROVISIONS OF SECTION 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAWS), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.03 NOTICES.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if when delivered to:
(a) in the case of the RMBS Master Servicer or Securities
Administrator:
Xxxxx Fargo Bank, N.A.
X.X. Xxx 00
Xxxxxxxx , Xxxxxxxx 00000
(or, in the case of overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 21045) (Attention: Corporate Trust Services -
AHMIT 2005-1), facsimile no.: (000) 000-0000, or such other address
as may hereafter be furnished to the other parties hereto in
writing;)
(b) in the case of Rating Agencies:
Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx - 41st Floor
New York, New York 10041
Attention: Asset Backed Surveillance Group
Xxxxx'x Investors Service, Inc.
31
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
(c) in the case of the Owner Trustee, the Corporate Trust
Office: Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
(d) in the case of the Issuer, to American Home Mortgage
Investment Trust 2005-1: c/o American Home Mortgage Securities LLC
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
(e) in the case of the Indenture Trustee: its Corporate
Trust Office
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party. Any notice required or permitted to be
mailed to a Noteholder shall be given by first class mail, postage prepaid, at
the address of such Noteholder as shown in the Note Register. Any notice so
mailed within the time prescribed in this Master Servicing Agreement shall be
conclusively presumed to have been duly given, whether or not the Noteholder
receives such notice. Any notice or other document required to be delivered or
mailed by the Indenture Trustee to the Rating Agencies shall be given on a
reasonable efforts basis and only as a matter of courtesy and accommodation and
the Indenture Trustee shall have no liability for failure to deliver such notice
or document to the Rating Agencies.
Section 7.04 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this Master Servicing Agreement shall be for any reason whatsoever held invalid,
then such covenants, agreements, provisions or terms shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this Master
Servicing Agreement and shall in no way affect the validity or enforceability of
the other provisions of this Master Servicing Agreement or of the Notes or the
rights of the Noteholders thereof.
Section 7.05 THIRD-PARTY BENEFICIARIES.
This Master Servicing Agreement will inure to the benefit of and be
binding upon the parties hereto, the Noteholders, the Issuer, the Owner Trustee,
the Depositor and any of its officers and directors, the Indenture Trustee and
their respective successors and permitted assigns. Except as otherwise provided
in this Master Servicing Agreement, no other Person will have any right or
obligation hereunder. The Indenture Trustee shall have the right (but not the
obligation) to exercise all rights of the Issuer under this Agreement. The
Depositor and its
32
officers and directors (in their corporate or individual capacity) shall have
the right to bring an action against any party hereto as it relates to a failure
of such party to comply with its obligations under Section 4.06 of this Master
Servicing Agreement.
Section 7.06 COUNTERPARTS.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 7.07 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 7.08 TERMINATION.
The respective obligations and responsibilities of the RMBS Master
Servicer and the Issuer created hereby shall terminate upon the satisfaction and
discharge of the Indenture pursuant to Section 4.10 thereof.
Section 7.09 No Petition.
The RMBS Master Servicer, solely in its capacities as RMBS Master
Servicer and Securities Administrator and not in its individual or corporate
capacity, by entering into this Master Servicing Agreement, hereby covenants and
agrees that it will not at any time institute against the Issuer, or join in any
institution against the Issuer, any bankruptcy proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations of the Issuer. This section shall survive the satisfaction and
discharge of the Indenture by one year.
Section 7.10 NO RECOURSE.
The RMBS Master Servicer acknowledges that no recourse may be had
against the Issuer, except as may be expressly set forth in this Master
Servicing Agreement.
Section 7.11 CONSENT TO JURISDICTION.
The parties to this Master Servicing Agreement each hereby irrevocably
submits to the nonexclusive jurisdiction of any New York State or federal court
sitting in the Borough of Manhattan in The City of New York in any action or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby, and all such parties hereby irrevocably agree that all
claims in respect of such action or proceeding may be heard and determined in
such New York State or federal court and hereby irrevocably waive, to the
fullest extent that they may legally do so, the defense of an inconvenient forum
to the maintenance of such action or proceeding. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
33
RELATING TO THIS MASTER SERVICING AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
34
IN WITNESS WHEREOF, the RMBS Master Servicer, the Issuer and the
Indenture Trustee have caused this Master Servicing Agreement to be duly
executed by their respective officers or representatives all as of the day and
year first above written.
XXXXX FARGO BANK, N.A., as RMBS Master
Servicer and Securities Administrator
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
AMERICAN HOME MORTGAGE
INVESTMENT TRUST 2005-1, as Issuer
WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as Owner
Trustee
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Financial Services Officer
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Associate
35
EXHIBIT A
RMBS MORTGAGE LOAN SCHEDULE
(FILED MANUALLY)
EXHIBIT B
FORM OF REQUEST FOR RELEASE
DATE:
TO:
RE:REQUEST FOR RELEASE OF DOCUMENTS
In connection with your administration of the Mortgage Loans, we request the
release of the Mortgage File described below.
Master Servicing Agreement ("Master Servicing Agreement") Dated:
Series #:
Account #:
Pool #:
Loan #:
Borrower Name(s):
Reason for Document Request: (circle one)Mortgage Loan Prepaid in Full
Other
Mortgage Loan Repurchased
Please deliver the Mortgage File to
--------------------------------------------------------------------------------
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been deposited in the
Securities Administrator Collection Account as provided in the Master Servicing
Agreement."
--------------------------
[Name of RMBS Master Servicer]
Authorized Signature
******************************************************************************
TO INDENTURE TRUSTEE: Please acknowledge this request (if we so request), and
check off documents being enclosed with a copy of this form. You should retain
this form for your files in accordance with the terms of the Master Servicing
Agreement.
Enclosed Documents: [ ]Promissory Note
[ ] Primary Insurance Policy
[ ]Mortgage or Deed of Trust
[ ]Assignment(s) of Mortgage or Deed of Trust
[ ]Title Insurance Policy
__________________________[ ]Other:
Name
__________________________
Title
__________________________
Date
EXHIBIT C-1
RESERVED
EXHIBIT C-2
FORM OF CERTIFICATION TO BE
PROVIDED TO RMBS MASTER SERVICER BY THE SECURITIES ADMINISTRATOR
Re: American Home Mortgage Investment Trust 2004-2 (the
"Trust" or the "Issuer") Mortgage-Backed Notes,
Series 2004-2
I, [identify the certifying individual], a [title] of Xxxxx Fargo Bank,
N.A., as Securities Administrator of the Trust, hereby certify to [American Home
Mortgage Servicing, Inc.][American Home Mortgage Securities LLC] and its
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal
year [___], and all reports on Form 8-K containing distribution reports filed in
respect of periods included in the year covered by that annual report, of the
Issuer relating to the above-referenced trust;
2. Based on my knowledge, the information in these distribution
reports prepared by the Securities Administrator taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading as of the last day of the period
covered by that annual report; and
3. Based on my knowledge, the distribution information required
to be provided by the Securities Administrator under the Indenture is included
in these distribution reports.
Capitalized terms used but not defined herein have the meanings
ascribed to them in Appendix A to the Indenture, dated March 23, 2005, among
American Home Mortgage Investment Trust 2005-1, as issuer, Xxxxx Fargo Bank,
N.A. as securities administrator and Deutsche Bank National Trust Company, as
indenture trustee.
XXXXX FARGO BANK, N.A., as Securities
Administrator
By:
-------------------------------------
Name:
Title:
