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MASTER CENTRAL SERVICING AGREEMENT
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between
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FEDERAL AGRICULTURAL MORTGAGE CORPORATION,
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as Owner/Master Servicer
and
[NAME OF CENTRAL SERVICER],
as Central Servicer
dated as of
[ ] 1, 199__
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MASTER CENTRAL SERVICING AGREEMENT
THIS MASTER CENTRAL SERVICING AGREEMENT (this "Agreement") entered into
as of [ ] 1, 199_, between the Federal Agricultural Mortgage Corporation, a
federally chartered instrumentality of the United States and an institution of
the Farm Credit System ("Xxxxxx Mac") and [Name of Central Servicer], a [ ] (the
"Central Servicer").
WITNESSETH
WHEREAS, Xxxxxx Mac is the beneficial owner of certain agricultural real
estate mortgage loans and Master Servicer with respect to certain other
agricultural real estate mortgage loans; and
WHEREAS, Xxxxxx Mac and the Central Servicer have agreed that the Central
Servicer is to service on behalf of Xxxxxx Mac certain of such agricultural real
estate mortgage loans (the "Qualified Loans") to be identified on the Schedule
of Qualified Loans (as hereinafter defined) attached to each Central Servicing
Supplement.
NOW, THEREFORE, in consideration of these premises, the parties agree as
follows:
ARTICLE I
DEFINED TERMS
Section 1.01 Defined Terms. All capitalized terms used but not defined
herein have the meanings assigned to them in the Securities Guide and the
following terms shall have the following meanings:
"Amount Held for Future Distribution": As to any Remittance Date,
the total of all amounts held in the Collection Account at the close of business
on such Remittance Date on account of (i) Installment Payments due after the
preceding Due Date and (ii) prepayments received after the preceding Due Date.
"Appraisal Standards": The appraisal standards
established by Xxxxxx Mac and set forth in the Securities Guide.
"Appraised Value": The appraised value of a Mortgaged Property as
indicated on the Schedule of Qualified Loans, which is the appraised value based
upon the appraisal conducted in accordance with the Appraisal Standards less
than one year prior to Xxxxxx Mac's acquisition of the Qualified Loan.
"Borrower": The obligor under a Qualified Loan.
"Business Day": Any other day than (i) a Saturday or a Sunday, (ii) a day
on which banking institutions in the States of Minnesota, New York or [Central
Servicer's jurisdiction] are required or authorized by law to be closed or (iii)
a day on
which Xxxxxx Mac is closed.
"Central Servicer": [ ], and
in its permitted successors and assigns.
"Central Servicer Advance": As to any Remittance Date, the amounts
advanced by the Central Servicer as specified in the definition of Central
Servicer Advance Requirement.
"Central Servicer Advance Requirement": The amount, if any, required to be
advanced by the Central Servicer on any Remittance Date, such amount being equal
to the total of all Installment Payments (with each interest component thereof
being adjusted to interest at the applicable Net Mortgage Rate) on the Qualified
Loans (including, for this purpose, REO Qualified Loans) that were due on or
prior to the preceding Due Date, and such Installments Payments were not the
subject of any previous unreimbursed Central Servicer Advance and were known by
the Central Servicer to be past due (irrespective of any moratorium, waiver or
other postponement) as of the close of business on such related Remittance Date;
provided, however, that no such advance in respect of a particular Qualified
Loan shall be required on any Remittance Date to the extent the Central Servicer
determines that any such advance if made would be a Nonrecoverable Advance.
"Central Servicer's Report": A report (which shall be in
electronic machine readable form) of the Central Servicer to Xxxxxx Mac and
Xxxxxx Mac's designee, if any, conforming to Section 4.01.
"Central Servicing Supplement": An instrument substantially in the
form of Exhibit B hereto executed by Xxxxxx Mac and the Central Servicer
pursuant to Section 2.01 hereof which supplements this Master Central Servicing
Agreement and identifies the Qualified Loans the Central Servicing of which is
being delegated to the Central Servicer by Xxxxxx Mac on the Closing Date
identified therein and sets forth the terms of the servicing of such Qualified
Loans.
"Closing Date": As identified in the Central Servicing
Supplement.
"Collection Account": The Eligible Account or Accounts created and
maintained pursuant to Section 3.02. Funds required to be deposited in the
Collection Account shall be held in trust for Xxxxxx Mac.
"Collection Period": As defined in the Central Servicing
Supplement.
"Cut-Off Date": As defined in the Central Servicing
Supplement.
"Due Date": As to any Qualified Loan, any date upon which a
scheduled installment of principal and interest on such Qualified Loan is due in
accordance with the terms of the related Mortgage Note.
"Eligible Account": An account that is either (i) maintained with a
depository institution the obligations of which would qualify as Permitted
Investments pursuant to clause (iii) of the definition thereof, (ii) an account
or accounts the deposits in which are fully insured by the Federal Deposit
Insurance Corporation or (iii) an account or accounts in a depository
institution acting in its fiduciary capacity in which the deposits in such
accounts are held in trust and are invested in an account as described in (i) or
(ii) above or in Permitted Investments. Funds deposited in each Eligible Account
shall be held in trust pending application in accordance with the provisions of
this Agreement.
"Eligible Substitute Mortgaged Property": A Mortgaged Property that is
substituted for an Existing Mortgaged Property pursuant to Section 3.02(a)
which, as evidenced by an Servicing Officer's certificate delivered to Xxxxxx
Mac, shall:
(i) secure the same Qualified Loan that such
Existing Mortgaged Property secures; and
(ii) on the date of substitution, have a current appraised value
at least equal to the Appraised Value of such Existing Mortgaged Property.
"Environmental Review Report": The report required to be prepared pursuant
to the Securities Guide prior to the foreclosure or other conversion of any
defaulted Qualified Loan.
"Environmental Statute": Any Federal, state or local law, ordinance, rule
or regulation including, but not limited to, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended; the Hazardous
Materials Transportation Act, as amended; the Resource Conservation and Recovery
Act, as amended; and any regulations adopted and publications promulgated
pursuant to each of the foregoing.
"Existing Mortgaged Property": A Mortgaged Property that is replaced by an
Eligible Substitute Mortgaged Property pursuant to Section 3.02(a).
"Xxxxxx Mac": The Federal Agricultural Mortgage Corporation, a federally
chartered institution of the Farm Credit System and instrumentality of the
United States, or any successor corporation or entity or Xxxxxx Mac's designee.
The term Xxxxxx Mac, when used to refer to the entity owning the Qualified
Loans, shall also include any entity designated by Xxxxxx Mac to be the holder
of the Qualified Loans.
"Field Servicer": Any Person with whom the Central Servicer has entered
into a Servicing Agreement or any Person who otherwise is acting as a Field
Servicer.
"Field Servicing Fee Rate": As to any Qualified Loan, the per annum rate
identified as the Field Servicing Fee Rate in the Schedule of Qualified Loans.
"Hazardous Materials": Any flammable explosives, radioactive materials or
any other materials, wastes or substances defined as hazardous materials,
hazardous wastes or hazardous or toxic substances by any Environmental Statute
or by any Federal, state or local governmental authority having or claiming
jurisdiction over the Mortgaged Property.
"Independent": When used with respect to any specified Person, such a
Person who (i) is in fact independent of the Seller and the Central Servicer,
(ii) does not have any direct financial interest or any material indirect
financial interest in the Seller or the Central Servicer or in an affiliate
thereof, and (iii) is not connected with the Seller or the Central Servicer as
an officer, employee, promoter, underwriter, partner, director or person
performing similar functions.
"Installment Payment": As to any Qualified Loan and any Due Date, any
payment of principal and/or interest thereon in accordance with the amortization
schedule of such Qualified Loan (after adjustment for any curtailments occurring
prior to the Due Date but before any adjustment to such amortization schedule by
reason of any bankruptcy or similar proceeding or any moratorium or similar
waiver or grace period).
"Insurance Proceeds": Proceeds paid to Xxxxxx Mac or the Central Servicer
(including any Field Servicer) by any insurer pursuant to any insurance policy
covering a Qualified Loan or Mortgaged Property, reduced by any expenses
incurred by Xxxxxx Mac or the Central Servicer (including any Field Servicer) in
connection with the collection of such Insurance Proceeds and not otherwise
reimbursed to Xxxxxx Mac or the Central Servicer, such expenses including,
without limitation, legal fees and expenses.
"Insured Expenses": Expenses covered by any insurance policy covering a
Qualified Loan or Mortgaged Property that are paid by or on behalf of Xxxxxx Mac
or the Central Servicer.
"Liquidated Qualified Loan": Any defaulted Qualified Loan (including any
REO Qualified Loan) as to which the Central Servicer has determined that all
amounts it expects to recover from or on account of such Qualified Loan have
been recovered and have been deposited into the Collection Account.
"Liquidation Expenses": Expenses incurred by or on behalf of Xxxxxx Mac or
the Central Servicer in connection with the liquidation of any defaulted
Qualified Loan, including, without limitation, legal fees and expenses,
brokerage commissions paid to third parties, any unreimbursed amounts expended
by Xxxxxx Mac or the Central Servicer pursuant to Sections 3.05(a), 3.07(a) and
3.07(e) (to the extent such amounts are reimbursable under the terms of such
Sections) respecting the related Qualified Loan and any related and unreimbursed
expenditures for real estate and conveyance taxes or for property restoration or
preservation. Liquidation Expenses shall not include any previously incurred
expenses in respect of a defaulted Qualified Loan that have been netted against
related REO Proceeds, and shall not include Insured Expenses.
"Liquidation Proceeds": Cash (including Insurance Proceeds) received in
connection with the liquidation of defaulted Qualified Loans and REO Qualified
Loans, whether through trustee's sale, foreclosure sale or otherwise.
"Loan-to-Value Ratio": As of any date, the fraction, expressed as a
percentage, the numerator of which is the principal balance of the related
Qualified Loan at the date of determination and the denominator of which is the
Appraised Value of the related Mortgaged Property as of the date of the
appraisal performed in accordance with the Appraisal Standards.
"Mortgage": A mortgage, deed of trust or other instrument that constitutes
a first lien on an interest in real property securing a Mortgage Note.
"Mortgage File": The legal documents (including the Mortgage Note,
Mortgage, assignment of the Mortgage, evidence of title to the Mortgaged
Property and any additional security documents) relating to a Qualified Loan.
"Mortgage Note": The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Borrower under a Qualified Loan.
"Mortgage Rate": As to any Qualified Loan, the rate of
interest borne by the related Mortgage Note.
"Mortgage Servicing Documents": The custodial documents, servicing
documents, escrow documents, if any, the original appraisal, including any
updates thereto, which was the basis for the Appraised Value, and all other
documents, records, and tapes necessary for prudent servicing in accordance with
the Central Servicer's standards for mortgage loan servicing, and such other
papers and documents, tax receipts, insurance policies, insurance premium
receipts, water stock certificates, ledger sheets, payment records, insurance
claim files and correspondence, foreclosure files and correspondence, current
and historical computerized data files and other papers and records of whatever
kind or description.
"Mortgaged Property": The property securing a Qualified
Loan.
"Net Liquidation Proceeds": As to any Liquidated Qualified
Loan, Liquidation Proceeds net of Liquidation Expenses not
theretofore reimbursed to the Central Servicer.
"Net Mortgage Rate": As to each Qualified Loan, the
Mortgage Rate less the sum of (a) the Servicing Fee Rate and (b)
the Field Servicing Fee Rate.
"Net REO Proceeds": As to any REO Qualified Loan, REO Proceeds net of any
related and otherwise unreimbursed expenses of the Central Servicer.
"Nonrecoverable Advance": Any portion of a Central Servicer Advance
previously made or proposed to be made in respect of a Qualified Loan which has
not been previously reimbursed to the Central Servicer and which, in the good
faith judgment of the Central Servicer, will not or, in the case of a proposed
Central Servicer Advance, would not be ultimately recoverable from future
Borrower payments or from Net Liquidation Proceeds, REO Proceeds or other
recoveries in respect of the related Qualified Loan. The determination by the
Central Servicer that it has made a Nonrecoverable Advance or that any proposed
advance, if made, would constitute a Nonrecoverable Advance shall be evidenced
by a written certification of a Servicing Officer delivered to Xxxxxx Mac,
stating (i) the amount of such Nonrecoverable Advance and (ii) that the Central
Servicer has determined in good faith that such advance is or would be a
Nonrecoverable Advance in accordance with the terms hereof and setting forth the
reasons therefor.
"Permitted Investments": One or more of the following, but
only to the extent permitted by applicable regulations:
(i) obligations of, or guaranteed as to
principal and interest by, Xxxxxx Mac or the United
States or any agency or instrumentality thereof;
(ii) repurchase agreements on obligations specified in clause (i),
which repurchase agreements will mature not later than the day preceding
the immediately following Remittance Date, provided that (a) the unsecured
short-term obligations of the party agreeing to repurchase such
obligations are at the time rated not less than A-1 by Standard & Poor's
and not less than Prime-1 by Moody's, (b) such repurchase agreements are
effected with a primary dealer recognized by a Federal Reserve Bank or (c)
such repurchase agreements are secured by obligations specified in clause
(i) above at not less than 102% of market value determined on a daily
basis;
(iii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances maturing in not more than 60 days and issued by, any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof and subject to supervision
and examination by federal and/or state banking authorities, so long as at
the time of such investment or contractual commitment providing for such
investment the commercial paper or other short-term debt obligations of
such depository institution or trust company (or, in the case of a
depository institution that is the principal subsidiary of a holding
company, the commercial paper or other short-term obligations of such
holding company) have a rating of not less than A-1 from Standard & Poor's
and a rating of not less than Prime-1 from Moody's;
(iv) commercial paper (having remaining maturities of not more than
60 days) of any corporation incorporated under the laws of the United
States or any state thereof, which on the date of acquisition has been
rated not less than A-1 from Standard & Poor's and not less than Prime-1
by Moody's; and
(v) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or
any state thereof if such securities are rated in the highest long-term
unsecured rating categories at the time of investment or the contractual
commitment providing for such investment by Standard & Poor's and Moody's;
provided, however, that securities issued by any particular corporation
will not be Permitted Investments to the extent that investment therein
will cause the then outstanding principal amount of securities issued by
such corporation and held as part of the Collection Account to exceed 10%
of the outstanding principal balance of the Qualified Loans being serviced
under this Agreement (it being understood that the entity directing the
investment shall be responsible for compliance with the foregoing
restriction on investments);
(vi) units of a taxable money-market portfolio rated "P-1" by
Moody's and "AAAm" by Standard & Poor's and restricted to investments in
obligations issued or guaranteed by the United States of America or
entities whose obligations are backed by the full faith and credit of the
United States of America and repurchase agreements collateralized by such
obligations;
(vii) units of a taxable money-market portfolio restricted to
investments which would be `Permitted Investments' under paragraphs (i)
through (vi) of this definition of `Permitted Investments'; and
(viii) other obligations or securities that are acceptable to (and
specified in writing by) Xxxxxx Mac.
The foregoing is qualified to the extent that no instrument described
above shall be a Permitted Investment if such instrument evidences either (x) a
right to receive only interest payments with respect to the obligations
underlying such instrument or (y) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity of greater
than 120% of the yield to maturity at par of such underlying obligations.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Principal Prepayment": Any payment (other than an Installment Payment) or
other recovery of principal on a Qualified Loan that is received in advance of
its scheduled Due Date.
"Principal Prepayment in Full": Any payment received on a Qualified Loan
that is in excess of the installment of principal and interest due thereon in an
amount sufficient to pay the entire principal balance of such Qualified Loan.
"Purchase Price": With respect to any Qualified Loan to be purchased
on any date pursuant to Section 3.07(g), an amount equal to the sum of (i) 100%
of the unpaid principal balance thereof as shown on the Schedule of Qualified
Loans less any principal payments made in respect of such Qualified Loan; (ii)
the unpaid accrued interest at the Net Mortgage Rate on the unpaid principal
balance thereof from the Due Date to which interest was last paid by the
Borrower to the next Due Date for such Qualified Loan; and (iii) if the date of
purchase by the Central Servicer occurs after the Qualified Loan has been
securitized, any Yield Maintenance Amount that would be payable under the terms
of the related Mortgage Note as if a Principal Prepayment in Full were made on
the date of purchase by the Central Servicer and such Yield Maintenance Amount
were calculated based on interest accruing at the Net Mortgage Rate less the sum
of (x) the Guarantee Fee Rate and (y) the Trustee Fee Rate (each of the
Guarantee Fee Rate and the Trustee Fee Rate having the meaning given such term
in the applicable securitization documents).
"Qualified Loan Receipts": With respect to any Collection Period, an
amount equal to (a) the sum of (i) the amount attributable to the Qualified
Loans that is on deposit in the Collection Account as of the close of business
on the following Remittance Date, including Borrower payments, including any
related Central Servicer Advance Requirement, Net REO Proceeds and Net
Liquidation Proceeds and any amount deposited in the Collection Account after
the preceding Remittance Date in respect of defaulted Qualified Loans purchased
by the Central Servicer or the Seller pursuant to Section 3.07(g) and (ii) any
amount on deposit in the Collection Account on the Due Date(s) in such
Collection Period in respect of the repurchase of any Qualified Loan repurchased
by the seller thereof, reduced by (b) the sum of (i) any Amount Held for Future
Distribution and (ii) all amounts permitted to be retained by the Central
Servicer pursuant to Section 3.02 or withdrawn by the Central Servicer from the
Collection Account in respect of the Qualified Loans pursuant to clauses (ii)
through (iv), inclusive, of Section 3.04(a).
"Qualified Loans": As defined in the recitals.
"Recourse Obligation": A Mortgage Note that permits the mortgagee
thereunder to seek a deficiency judgment that is enforceable under applicable
state law.
"Remittance Account": The account or accounts established by Xxxxxx Mac
into which the Central Servicer will make deposits on each Remittance Date.
"Remittance Date": As to any Collection Period, the 15th day (or if such
15th day is not a Business Day, the next succeeding Business Day) of the month
in which such Collection Period ends.
"REO Account": The account established by the Central Servicer in which it
shall segregate all funds collected and received in connection with the
operation of any REO Qualified Loans separate and apart from its own funds and
general assets and held in trust for the benefit of Xxxxxx Mac, which shall be
an Eligible Account and may be located in the same account as the Collection
Account, but as to which separate records (or entries) shall be maintained.
"REO Principal Amortization Amount": With respect to any REO Qualified
Loan for any Remittance Date (other than an REO Qualified Loan which has a
Scheduled Principal Balance of zero), any amount transferred during the
preceding Collection Period to the REO Account and not allocated pursuant to
clauses first and second of Section 3.07(c).
"REO Proceeds": Proceeds, other than Liquidation Proceeds, received in
respect of any REO Qualified Loan (including, without limitation, proceeds from
the rental of the related Mortgaged Property).
"REO Property": Any Mortgaged Property that has been acquired by Xxxxxx
Mac (or an assignee of Xxxxxx Mac and as to which Xxxxxx Mac is the master
servicer) by foreclosure, deed-in-lieu of foreclosure or otherwise.
"REO Qualified Loan": Any Qualified Loan that is not a Liquidated
Qualified Loan and as to which the related Mortgaged Property is held by Xxxxxx
Mac (or an assignee of Xxxxxx Mac and as to which Xxxxxx Mac is the master
servicer).
"Schedule of Qualified Loans": The list of Qualified Loans the
servicing of which has been assigned by Xxxxxx Mac to the Central Servicer on
the applicable Closing Date and attached to and made part of the Central
Servicing Supplement in the form and containing the information set forth in
Attachment I thereto, which list may be amended from time to time by Xxxxxx Mac
and the Central Servicer. Such schedule, which shall be in hard copy and in
machine readable format to Xxxxxx Mac and the Central Servicer shall be prepared
by Xxxxxx Mac (based on information provided to Xxxxxx Mac by the seller of the
Qualified Loans) and may consist of multiple reports that collectively set forth
all of the information requested.
"Securities Guide": The publication entitled "Federal Agricultural
Mortgage Corporation Securities Guide," release dated April 10, 1992, as
modified by any guide update or bulletin or as replaced by any other publication
of Xxxxxx Mac identified by Xxxxxx Mac as a "Servicing Guide."
"Servicing Agreement": An agreement between the Central Servicer and
a Field Servicer providing for the servicing and administration of some or all
of the Qualified Loans by such Field Servicer. A Servicing Agreement does not
relieve the Central Servicer of any of its duties or obligations under this
Agreement.
"Servicing Fee Rate": As to any Qualified Loan, the per annum rate
identified as the Central Servicing Fee Rate in the Schedule of Qualified Loans.
"Servicing Officer": Any officer of the Central Servicer involved in, or
responsible for, the administration and servicing of the Qualified Loans whose
name and specimen signature appears on a list of servicing officers furnished to
Xxxxxx Mac by the Central Servicer on the Closing Date, as such list may from
time to time be amended by delivery of written notice by an existing Servicing
Officer.
"Standard Hazard Insurance Policy": A standard fire insurance policy with
extended coverage, which shall provide standard coverage against loss by fire,
lightning, windstorm, hail, explosion, riot not attending a strike, civil
commotion, aircraft, vehicles, smoke, vandalism or malicious mischief.
"Yield Maintenance Amount": As to any Qualified Loan, the amount payable
by the Borrower thereunder in connection with a Principal Prepayment thereof
(whether voluntary or involuntary) or other acceleration by the legal holder
thereof upon a default by such Borrower thereunder, as specified in the Mortgage
Note.
ARTICLE II
MORTGAGE SERVICING DOCUMENTS
Section 2.01 Mortgage Servicing Documents. Not later than each Closing
Date, the Central Servicer shall be in possession of the Mortgage Servicing
Documents with respect to each Qualified Loan. To the extent such Mortgage
Servicing Documents are not in the possession of the Central Servicer, the
Central Servicer will immediately notify Xxxxxx Mac in writing of the missing
documents.
ARTICLE III
CENTRAL SERVICING OF QUALIFIED LOANS
Section 3.01. Central Servicer to Act as Servicer.
(a) Commencing with each Closing Date, the Central Servicer shall service
the Qualified Loans (including REO Qualified Loans) identified in the related
Schedule of Qualified Loans in conformity with this Agreement and the Securities
Guide as it applies to the Qualified Loans and shall have full power and
authority, acting alone and/or through field servicers as provided in Section
3.15, to do any and all things which it may deem necessary or desirable in
connection with such servicing.
(b) Without limiting the generality of the foregoing, the Central Servicer
is hereby authorized and empowered by Xxxxxx Mac when the Central Servicer
believes it appropriate, in its best judgment, but consistent with and subject
to the terms of this Agreement, to execute and deliver, on behalf of Xxxxxx Mac,
any and all instruments of satisfaction or cancellation, or of partial or full
release or discharge and all other comparable instruments, with respect to the
Qualified Loans and with respect to the Mortgaged Properties. Xxxxxx Mac shall
cause the Central Servicer to be furnished from time to time with such Powers of
Attorney and other documents necessary or appropriate to enable the Central
Servicer to service and administer the Qualified Loans upon the request of the
Central Servicer. The Central Servicer shall provide Xxxxxx Mac with the form of
any such Power(s) of Attorney or other document(s) (reasonably acceptable to
Xxxxxx Mac) and Xxxxxx Mac agrees to cause such Power(s) of Attorney or other
documents to be executed and returned promptly after hard copy receipt thereof
by Xxxxxx Mac. Xxxxxx Mac acknowledges and understands that the Central Servicer
may submit Power(s) of Attorney to Xxxxxx Mac on an annual basis for recording
each year in accordance with local law requirements, and Xxxxxx Mac agrees to
cause such Power(s) of Attorney to be executed and returned as provided in the
preceding sentence.
Section 3.02. Collection of Certain
Qualified Loan Payments; Collection Account.
(a) The Central Servicer shall, consistent with this Agreement and, to the
extent not inconsistent with the Securities Guide, in accordance with customary
industry standards for agricultural mortgage loan servicing, make reasonable
efforts to collect all payments called for under the terms and provisions of the
Qualified Loans. The Central Servicer may in its discretion waive, postpone,
reschedule, modify or otherwise compromise the terms of payment of any Qualified
Loan so long as any such waiver, postponement, rescheduling, modification or
compromise shall not be inconsistent with this Agreement, or be consented to in
advance in writing by Xxxxxx Mac. No such arrangement shall alter or modify the
amortization schedule of such Qualified Loan for purposes of calculating any
Central Servicer Advance Requirement in respect thereof without the prior
written consent of Xxxxxx Mac. In addition, the Central Servicer may in its
discretion permit the substitution of an Eligible Substitute Mortgaged Property
for an Existing Mortgaged Property so long as the Mortgage Note relating to the
Qualified Loan that the Existing Mortgaged Property secures is a Recourse
Obligation. The Central Servicer may waive, in whole or in part, the obligation
of a Borrower to pay a Yield Maintenance Amount only with the prior written
consent of Xxxxxx Mac.
(b) The Central Servicer shall establish and maintain a Collection Account
in its name for the benefit of Xxxxxx Mac (and for which Xxxxxx Mac shall bear
any costs and expenses incurred with respect to withdrawals with respect to
Remittance Date) in which the Central Servicer shall deposit as promptly as
practicable following receipt (but in no event later than one (1) Business Day
following receipt) except as otherwise specifically provided herein or in a
Central Servicing Supplement, the following payments and collections received by
it subsequent to the Cut-Off Date (other than in respect of principal and
interest on the Qualified Loans due on or before the Cut-Off Date):
(i) All payments on account of principal on
the Qualified Loans;
(ii) All payments on account of interest on the Qualified Loans
adjusted, in each case, to interest at the applicable Net Mortgage Rate,
except that the portion of any such payment on account of interest
accruing on any delinquent Installment Payment with respect to which a
Central Servicer Advance is outstanding need not be deposited in the
Collection Account;
(iii) Net Liquidation Proceeds, Net REO Proceeds and Insurance Proceeds
(other than Insurance Proceeds to be applied to the restoration or repair
of the related Mortgaged Property or released to the Borrower in
accordance with the Central Servicer's normal servicing procedures) net of
any amounts permitted to be withheld by the Central Servicer as servicing
compensation pursuant to Section 3.09 or permitted to be paid to the
Central Servicer pursuant to the last sentence of Section 3.07(e) and not
paid directly by Xxxxxx Mac;
(iv) All proceeds of any Qualified Loans
purchased by the Central Servicer or repurchased by the
seller of such Qualified Loan;
(v) All Yield Maintenance Amounts paid by
Borrowers;
(vi) Any deposit required by the second
paragraph of Section 3.05(a); and
(vii) Any late charge or interest on the Qualified Loans accruing at a
default rate related to delinquent Installment Payments with respect to
which no Central Servicer Advance was made.
Notwithstanding the foregoing, the Central Servicer shall not be required
to deposit and may retain late collections, including Liquidation Proceeds,
Insurance Proceeds and REO Proceeds to the extent of unpaid Central Servicer
Advances and servicing advances with respect to the related Qualified Loans. The
foregoing requirements for deposit in the Collection Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments or collections in the nature of late payment charges,
assumption fees or other service charges imposed upon Borrowers in connection
with servicing the Qualified Loans may but need not be deposited by the Central
Servicer in the Collection Account. In the event the Central Servicer shall
deposit in the Collection Account any amount not required to be deposited
therein, it may at any time withdraw such amount from the Collection Account,
any provision herein to the contrary notwithstanding.
(c) The Central Servicer shall cause the institution with which the
Collection Account is maintained to invest the funds in the Collection Account
attributable to the Qualified Loans in those Permitted Investments specified in
writing by Xxxxxx Mac which shall mature in immediately available funds not
later than the day preceding the next Remittance Date and shall not be sold or
disposed of prior to maturity. All earnings and gains realized from any such
investments in the Collection Account shall be for the benefit of Xxxxxx Mac.
The amount of any losses or expenses incurred in connection with the investment
of amounts in the Collection Account shall be deducted from the amount to be
distributed to Xxxxxx Mac.
(d) The Central Servicer shall give notice to Xxxxxx Mac of the location
of the Collection Account, and of any change in the location thereof, prior to
the use thereof.
Section 3.03. Payment of Taxes, Assessments and Other
Items; Advances by Central Servicer.
(a) The Central Servicer shall use its best efforts to cause the Borrowers
to pay any taxes, assessments, Standard Hazard Insurance Policy premiums, or
other charges with respect to which the failure to pay would result in a lien on
the related Mortgaged Property by operation of law or comparable items relating
to the Mortgaged Properties.
(b) The Central Servicer shall advance the payments referred to in
subsection (a) that are not timely paid by the Borrowers on the date when the
tax, premium or other cost for which such payment is intended is due, but the
Central Servicer shall be required so to advance only (x) to the extent
necessary, in the good faith judgment of the Central Servicer, to protect Xxxxxx
Mac against any loss and (y) so long as in the good faith judgment of the
Central Servicer, such advances ultimately would be recoverable from payments
(other than Installment Payments) made by the Borrower or from Liquidation
Proceeds.
Section 3.04. Permitted Withdrawals from the
Collection Account; Maintenance of Accounting Records.
(a) The Central Servicer may, from time to time as provided herein, make
withdrawals from the Collection Account for the following purposes:
(i) to make distributions to Xxxxxx Mac on each
Remittance Date;
(ii) at any time to withdraw any amount deposited in the
Collection Account that was not required to be deposited therein pursuant
to Section 3.02(b);
(iii) to reimburse itself for previously unreimbursed Central
Servicer Advances and servicing advances, the Central Servicer's right to
withdraw amounts pursuant to this clause (iii) being limited to amounts
received on particular Qualified Loans (including, for this purpose,
Borrower payments, Insurance Proceeds, Liquidation Proceeds, REO Proceeds
and proceeds from the repurchase of the related Qualified Loan) which
represent late recoveries of Installment Payments respecting which any
such Central Servicer Advance was made; and
(iv) to reimburse itself for any Nonrecoverable Advance and to
pay to an Independent contractor any fee to be paid or reimbursed by
Xxxxxx Mac pursuant to the last sentence of Section 3.07(e).
(b) The Central Servicer shall keep and maintain or cause to be kept and
maintained separate accounting, on a Qualified Loan-by-Qualified Loan basis, for
the purpose of providing Xxxxxx Mac or its designee with the information
necessary for the preparation of such reports as may be requested by Xxxxxx Mac.
Section 3.05. Maintenance of Hazard Insurance and
Errors and Omissions and Fidelity Coverage.
(a) The Central Servicer shall cause to be maintained for each Qualified
Loan a Standard Hazard Insurance Policy insuring against loss or damage to the
insurable improvements included in the Appraised Value in an amount not less
than the value assigned to such improvements in the related appraisal. The
Central Servicer shall also cause to be maintained on property acquired upon
foreclosure, or deed in lieu of foreclosure, of any Qualified Loan, a Standard
Hazard Insurance Policy in an amount at least equal to the amount necessary to
avoid the application of any co-insurance clause contained in the related hazard
insurance policy. Pursuant to Section 3.02, any amounts collected by the Central
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the related Mortgaged Property or property thus
acquired or amounts released to the Borrower in accordance with the Central
Servicer's normal servicing procedures) shall be deposited in the Collection
Account, subject to withdrawal pursuant to Section 3.04. Any cost incurred by
the Central Servicer in maintaining any such insurance shall not, for the
purpose of calculating amounts required to be deposited in the Collection
Account, be added to the amount owing under the Qualified Loan, notwithstanding
that the terms of the Qualified Loan so permit. Such costs shall be reimbursable
to the Central Servicer in accordance with Section 3.04(a)(iii) as if such costs
were contained in a Central Servicer Advance. It is understood and agreed that
no earthquake or other additional insurance is to be required of any Borrower or
maintained on property acquired in respect of a Qualified Loan other than
pursuant to such laws and regulations applicable to such Borrower as shall at
any time be in force and as shall require such additional insurance.
If the Central Servicer shall maintain a blanket policy issued by an
insurer having a Xxxxx'x financial strength rating of A3 or higher and insuring
against hazard losses on all of the Qualified Loans, it shall conclusively be
deemed to have satisfied its obligation as set forth in this Section 3.05(a).
Such policy may contain a deductible clause, in which case, if there shall not
have been maintained on the related Mortgaged Property or acquired property an
insurance policy complying with the first sentence of the first paragraph of
this Section 3.05(a), and there shall have been a loss that would have been
covered by such a policy had it been maintained, the Central Servicer shall be
required to deposit from its own funds into the Collection Account the amount
not otherwise payable under the blanket policy because of such deductible
clause.
(b) The Central Servicer shall obtain and maintain at its own
(non-reimbursable) expense and keep in full force and effect throughout the term
of this Agreement a blanket fidelity bond and an errors and omissions insurance
policy (which errors and omissions insurance policy shall provide coverage in
accordance with the Securities Guide) covering the Central Servicer's officers
and employees and other persons acting on behalf of the Central Servicer in
connection with its activities under this Agreement, except that such policies
need not specifically insure against the acts of Field Servicers, except to the
extent the Field Servicer is receiving payments on Qualified Loans, or executing
documents under a power of attorney granted by the Central Servicer. In the
event that any such required bond or policy ceases to be in effect, the Central
Servicer shall obtain a comparable replacement bond or policy from an issuer or
insurer, as the case may be, providing such coverage as shall satisfy the
requirements set forth in the Securities Guide. Coverage of the Central Servicer
under a policy or bond obtained by an Affiliate of the Central Servicer and
providing the coverage required by this Section 3.05(b) shall satisfy the
requirements of this Section 3.05(b).
Section 3.06. Enforcement of Due-on-Sale Clauses;
Assumption Agreements.
(a) When any Mortgaged Property is conveyed by the Borrower, the Central
Servicer may, but shall not be required to, enforce any due-on-sale or
due-on-encumbrance clause contained in any Mortgage Note or Mortgage, in
accordance with the provisions of such Mortgage Note or Mortgage and in the best
interests of Xxxxxx Mac, and may approve the assumption of the Mortgage Note by
the transferee of the Mortgaged Property; provided, however, that after giving
due effect to any such additional encumbrance, the loan-to-value ratio of the
related Qualified Loan is not in excess of the Loan-to-Value Ratio thereof as of
the Cut-Off Date.
(b) In any case in which a Mortgaged Property is to be conveyed to a
Person by a Borrower, and such Person is to enter into an assumption agreement
or substitution agreement or supplement to the Mortgage Note or Mortgage which
requires the signature of Xxxxxx Mac, or if an instrument of release to be
signed by Xxxxxx Mac is required releasing the Borrower from liability on the
Qualified Loan, the Central Servicer shall deliver or cause to be delivered to
Xxxxxx Mac (or its designee) for signature the assumption agreement with the
Person to whom the Mortgaged Property is to be conveyed and such substitution
agreement or supplement to the Mortgage Note or Mortgage or other instruments as
are reasonable or necessary to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws regarding assumptions
or the transfer of the Mortgaged Property to such Person. The Central Servicer
shall also deliver or cause to be delivered to Xxxxxx Mac with the foregoing
documents a letter explaining the nature of such documents and the reason or
reasons why Xxxxxx Mac's signature is required. With such letter, the Central
Servicer shall deliver to Xxxxxx Mac a certificate of a Servicing Officer in
form reasonably satisfactory to Xxxxxx Mac certifying that: (i) a Servicing
Officer has examined and approved such documents as to form and substance, (ii)
Xxxxxx Mac's execution and delivery thereof will not conflict with or violate
any terms of this Agreement; (iii) subsequent to the closing of the transaction
involving the assumption or transfer (A) the Qualified Loan will continue to be
secured by a first mortgage lien pursuant to the terms of the Mortgage and (B)
no material term (including, but not limited to, the Mortgage Rate, the amount
of any Installment Payment and any term affecting the amount or timing of
payment) of the Qualified Loan will be altered and the term of the Qualified
Loan will not be increased and (iv) if the seller/transferor of the Mortgaged
Property is to be released from liability on the Qualified Loan, the Central
Servicer has evaluated the creditworthiness of the buyer/transferee and has
determined that if the buyer/transferee were applying for the Qualified Loan
being assumed, such loan would be a Qualified Loan, and such release will not
adversely affect the collectibility of the Qualified Loan (based on the Central
Servicer's good faith determination). Upon receipt of and in reliance upon such
certificate, Xxxxxx Mac (or its designee) shall execute any necessary
instruments for such assumption or substitution of liability. Upon the closing
of the transactions contemplated by such documents, the Central Servicer shall
cause the originals of the assumption agreement, the release (if any), or the
modification or supplement to the Mortgage Note or Mortgage to be delivered to
Xxxxxx Mac.
(c) The Central Servicer shall be entitled to approve a request from a
Borrower for the granting of an easement on the related Mortgaged Property in
favor of another Person, any alteration or demolition of the related Mortgaged
Property or other similar matters if (A) it has determined, exercising its good
faith business judgment in the same manner as it would if it were the owner of
the related Qualified Loan, that (i) the security for such Qualified Loan would
not be materially adversely affected thereby; (ii) the timely and full
collectibility of such Qualified Loan would not be adversely affected thereby;
and (iii) as a result of such easement, alteration, demolition orother similar
matter, the loan-to-value ratio would not be in excess of the Loan-to-Value
Ratio with respect to such Qualified Loan as of the Cut-Off Date; and (B) it
follows the requirements and procedures therefor as set forth in the Securities
Guide, if applicable.
Section 3.07. Realization Upon Defaulted Qualified
Loans.
(a) (i) Notwithstanding anything to the contrary in this Agreement, the
Central Servicer shall not, on behalf of Xxxxxx Mac, obtain title to a
Mortgaged Property as a result of foreclosure or otherwise, and shall not
otherwise acquire possession of, or take any other action with respect to,
any Mortgaged Property, if, as a result of any such action, Xxxxxx Mac
would be considered to hold title to, to be a "mortgagee-in-possession"
of, or to be an "owner" or "operator" of, such Mortgaged Property within
the meaning of any Environmental Statute or a "discharger" or "responsible
party" thereunder, unless the Central Servicer has prepared or caused to
be prepared an Environmental Review Report and obtained any consents in
connection therewith as shall be required by the Securities Guide. The
Central Servicer shall foreclose upon or otherwise comparably convert the
ownership of Mortgaged Properties securing such of the Qualified Loans as
come into and continue in default and as to which no arrangements
consistent with this Agreement and the Securities Guide have been made for
collection of delinquent payments pursuant to Section 3.02. In connection
with such foreclosure or other conversion, and in connection with any
restoration of any Mortgaged Property after foreclosure or conversion and
before disposal thereof, the Central Servicer shall follow such practices
and procedures as it shall deem, in its best judgment, necessary or
advisable in accordance with applicable law and as shall be required or
permitted by this Agreement and the Securities Guide. The foregoing is
subject to the proviso that the Central Servicer shall not be authorized
to incur expenses in connection with any foreclosure or conversion, or
towards the restoration of any property, unless it shall determine in good
faith that such conversion, foreclosure and/or restoration will increase
the proceeds of liquidation of the Qualified Loan to Xxxxxx Mac after
reimbursement for the expenses therefor. In the event that the Central
Servicer makes such a determination, it shall advance any Liquidation
Expenses from its own funds. Any Liquidation Expenses incurred by the
Central Servicer in accordance with the foregoing shall be reimbursable to
the Central Servicer, out of REO Proceeds or Liquidation Proceeds relating
to such Qualified Loan in accordance with Section 3.04(a)(iii) as if such
costs were contained in a Central Servicer Advance. The Central Servicer
shall be entitled to receive interest on such Liquidation Expenses to the
extent such interest is collected under the terms of the related Mortgage
Note; provided, however, that, the Central Servicer shall only be entitled
to such interest after an aggregate amount equal to the sum of (i) the
outstanding principal balance of the related Qualified Loan; (ii) interest
accrued and unpaid on such Qualified Loan at the applicable Net Mortgage
Rate; and (iii) any applicable Yield Maintenance Amount has been deposited
in the Remittance Account with respect to such Qualified Loan.
(ii) If the Environmental Review Report discloses any adverse
information with respect to any Mortgaged Property or if any questions
required to be answered in the Environmental Review Report cannot be
answered, the Central Servicer shall either (x) recommend to Xxxxxx Mac in
writing that foreclosure, trustee's sale or a deed-in-lieu of foreclosure
should be delayed or abandoned, stating the reasons for the Central
Servicer's conclusions and attaching a copy of Part I of the Environmental
Review Report or (y) conduct Phase II of an Environmental Review (as such
terms are defined in the Securities Guide).
(iii) If the Environmental Review Report or Phase II of the
Environmental Review discloses the presence, disposal, escape, seepage,
leakage, spillage, discharge, emission, release or threatened release of
any Hazardous Materials on, from or affecting the Mortgaged Property and
if the cost of eliminating such Hazardous Materials exceeds the potential
recovery upon liquidation of the related Qualified Loan the Central
Servicer shall not allow such Qualified Loan to become an REO Qualified
Loan and shall take such action as it deems to be in the best interest of
Xxxxxx Mac, including, if the Central Servicer deems it so appropriate,
and after making reasonable efforts to locate a purchaser, the release of
all or a portion of the lien of the related Mortgage.
(b) In the event that title to any Mortgaged Property is acquired for the
benefit of Xxxxxx Mac (or Xxxxxx Mac's assignee or designee) in foreclosure, by
delivery of a deed-in-lieu of foreclosure or otherwise, the named grantee of the
deed or certificate of sale shall be "First Trust National Association, as
Custodian/Trustee" or such successor custodian/trustee as identified by Xxxxxx
Mac. The Central Servicer, on behalf of Xxxxxx Mac, shall use its best efforts
to dispose of any REO Property in a reasonably expeditious manner and otherwise
in accordance with any applicable Environmental Statute.
(c) The Central Servicer shall separately account for all funds collected
and received in connection with the operation of any REO Property in the REO
Account. The aggregate of the amounts deposited in the REO Account during a
Collection Period in respect of an REO Property pursuant to this Section shall
be allocated first to all amounts payable to the Central Servicer with respect
to such REO Property or the related Qualified Loan pursuant to this Section and
remaining unpaid, second to all interest accrued and unpaid thereon from the
last date to which interest was paid by the Borrower (or deemed to have been
paid through previous applications to interest pursuant to this clause second)
and third to any REO Principal Amortization Amount. Interest and earnings on
funds deposited in the REO Account shall accrue to the benefit of Xxxxxx Mac.
(d) The Central Servicer shall have full power and authority, subject only
to the specific requirements and prohibitions of this Agreement, to do any and
all things in connection with any REO Property as are consistent with the manner
in which the Central Servicer manages and operates similar property owned by the
Central Servicer or any of its Affiliates, all on such terms and for such period
as the Central Servicer deems to be in the best interests of Xxxxxx Mac. In
connection therewith, the Central Servicer shall deposit, or cause to be
deposited, on a daily basis in the REO Account all revenues received by it with
respect to the related REO Property and shall withdraw therefrom funds necessary
for the proper operation, management and maintenance of the related REO Property
including:
(i) all insurance premiums due and payable in
respect of any REO Property;
(ii)all real estate taxes and assessments in respect of any REO
Property that may result in the imposition of a lien thereon; and
(iii)all costs and expenses necessary to maintain and operate such
REO Property.
To the extent that amounts on deposit in the REO Account are insufficient
for the purposes set forth in (i) through (iii) above with respect to any REO
Property, the Central Servicer shall advance from its own funds such amount as
is necessary for such purposes if, but only if, the Central Servicer would make
such advances if the Central Servicer owned such REO Property and if, in the
Central Servicer's good faith business judgment, the payment of such amounts
will be recoverable from the operation or sale of that REO Property.
(e) The Central Servicer on behalf of Xxxxxx Mac may contract with any
Independent contractor for the operation and management of any REO Property,
provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent with the terms of this Agreement;
(ii) any such contract shall require, or shall be administered to
require, that the Independent contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed above, and remit all related revenues
(net of such costs and expenses) to the Central Servicer as soon as
practicable, but in no event later than thirty days following the receipt
thereof by such Independent contractor;
(iii) none of the provisions of this Section 3.07(e) relating to any such
contract or to actions taken through any such Independent contractor shall
be deemed to relieve the Central Servicer of any of its duties and
obligations to Xxxxxx Mac with respect to the operation and management of
any such REO Property; and
(iv) the Central Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Central Servicer shall be entitled to enter into any agreement with
any Independent contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Central Servicer by such
Independent contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. The Central Servicer (provided it act as an
independent contractor with respect to properties held by other entities) or any
Independent contractor shall be entitled to a fee, based on the prevailing
market rate (determined after consultation with Xxxxxx Mac), for the operation
and management of any REO Property. If such fee is not covered by gross revenues
from the related REO Property, the Central Servicer or other Independent
contractor shall be paid by Xxxxxx Mac for all fees owed it.
(f) On or before each Remittance Date, the Central Servicer shall withdraw
from the REO Account and deposit into the Collection Account Net REO Proceeds
received or collected during the related Collection Period less amounts
reasonably anticipated to be needed to pay recurring expenses relating to REO
Properties in the next twelve months.
(g) Notwithstanding anything in this Agreement to the contrary, the
Central Servicer shall have the right but not the obligation to purchase any
Qualified Loan from Xxxxxx Mac at such time as such Qualified Loan comes into
and continues in default for a period of at least 90 days. If the Central
Servicer exercises its right so to purchase, the Central Servicer shall deposit
the Purchase Price with respect to such defaulted Qualified Loan into the
Collection Account not later than the Remittance Date next succeeding the
Collection Period during which the Central Servicer notifies Xxxxxx Mac of its
intention to purchase such defaulted Qualified Loan.
(h) If applicable state law permits an action for a deficiency judgment,
the Central Servicer shall have the right to determine whether to seek a
deficiency judgment or enforce any applicable additional security documents
following foreclosure, exercising its good faith business judgment in the same
manner as it would if it had been the owner of the related Qualified Loan.
(i) The Central Servicer shall neither be required to take nor to omit to
take any action in any case where such action or omission, in its good faith
business judgment, would cause it to be liable under an Environmental Statute.
If the Central Servicer determines that any action or omission would so subject
it to such liability, it shall promptly notify Xxxxxx Mac.
Section 3.08. Xxxxxx Mac to Cooperate; Release of
Mortgage Files.
(a) Upon receipt of the payment in full of any Qualified Loan, or upon the
receipt by the Central Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, the Central Servicer shall
immediately notify Xxxxxx Mac (or its designee) by a certification of a
Servicing Officer in form reasonably acceptable to Xxxxxx Mac (which
certification shall include a statement to the effect that all amounts received
or to be received in connection with such payment required to be deposited in
the Collection Account pursuant to Section 3.02 have been or will be so
deposited) and shall request delivery to it of the Mortgage File. Upon receipt
of such certification and request, Xxxxxx Mac shall cause the related Mortgage
File to be released to the Central Servicer and the request for reconveyance,
deed of reconveyance or release or satisfaction of mortgage or such instrument
releasing or reassigning the lien of the Mortgage prepared by the Central
Servicer, together with the Mortgage Note with written evidence of cancellation
thereon to be executed and delivered to the Central Servicer. Xxxxxx Mac shall
cause the Mortgage File to be released and such other documents or instruments
in accordance with this Section 3.08 to be executed and delivered promptly
(generally within 2 Business Days) after receipt by Xxxxxx Mac of the foregoing
request. No expenses incurred in connection with recording any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Collection
Account.
(b) From time to time as is appropriate for the servicing or foreclosure
of any Qualified Loan, Xxxxxx Mac shall cause the related Mortgage File or any
document therein to be delivered to the Central Servicer upon Xxxxxx Mac's
receipt of a request for release (in form satisfactory to Xxxxxx Mac) from the
Central Servicer requesting delivery of such file or document. Xxxxxx Mac shall
cause such release promptly (generally within 2 Business Days after receipt by
Xxxxxx Mac of the foregoing request for release. The Central Servicer shall
return each Mortgage File or any document therein so released to Xxxxxx Mac when
the need therefor by the Central Servicer no longer exists, unless (i) the
Qualified Loan has been liquidated and the Liquidation Proceeds relating to the
Qualified Loan have been deposited in the Collection Account or (ii) the
Mortgage File or such document has been delivered to any attorney, or to a
public trustee or other public official as required by law, for purposes of
initiating or pursuing legal action or other proceedings for the foreclosure of
the Mortgaged Property either judicially or nonjudicially, and the Central
Servicer has delivered to Xxxxxx Mac a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage File
or such document was delivered and the purpose or purposes of such delivery. In
the event of the liquidation of a Qualified Loan, Xxxxxx Mac shall cause the
request for release with respect thereto to be delivered to the Central Servicer
upon deposit of the related Liquidation Proceeds in the Collection Account and
the Central Servicer's request for delivery of the request for release.
(c) Xxxxxx Mac shall cause the execution and delivery to the Central
Servicer of any court pleadings, requests for trustee's sale or other documents
prepared by the Central Servicer and necessary to the foreclosure or Xxxxxx
Mac's sale, bankruptcy sale or work out settlement in respect of a Mortgaged
Property or to any legal action brought to obtain judgment against any Borrower
on the Mortgage Note, Mortgage or Additional Collateral Documents or to obtain a
deficiency judgment, or to enforce any other remedies or rights provided by the
Mortgage Note, Mortgage or Additional Collateral Documents or otherwise
available at law or in equity. Together with such documents or pleadings, the
Central Servicer shall deliver to Xxxxxx Mac a certificate of a Servicing
Officer requesting that such pleadings or documents be caused to be executed by
Xxxxxx Mac and certifying as to the reason such documents or pleadings are
required and that the execution and delivery thereof will not invalidate any
insurance coverage under any required insurance policy or invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
Section 3.09. Servicing and Other Compensation.
(a) The Central Servicer, as compensation for its activities and
obligations hereunder, shall be entitled to withhold (i) from each payment on
account of interest on a Qualified Loan (x) the amount of interest calculated at
the Servicing Fee Rate to the extent, if any, that the interest component of the
payment received is in excess of interest calculated at the Net Mortgage Rate
and (y) the amount, if any, of each such payment representing interest accruing
on any delinquent Installment Payment with respect to which a Central Servicer
Advance has been made by and not reimbursed to the Central Servicer, (ii) from
Net REO Proceeds, the amount, if any, by which the portion thereof allocable to
interest is in excess of interest at the Net Mortgage Rate but not to exceed
interest at the Servicing Fee Rate for the period deemed to be covered thereby,
and (iii) from Net Liquidation Proceeds the amount, if any, by which such Net
Liquidation Proceeds are in excess of the sum of (x) the unpaid principal
balance of the related Qualified Loan together with accrued and unpaid interest
thereon at the Net Mortgage Rate to the date of the final liquidation thereof
and (y) any applicable Yield Maintenance Amount, but not in excess of interest
calculated at the Servicing Fee Rate from the date of the last payment of fees
to the Central Servicer with respect to each related Liquidated Qualified Loan.
The Central Servicer shall also be entitled to additional servicing compensation
in the form of assumption fees, late payment charges, interest calculated at a
penalty rate (but only with respect to Installment Payments for which a Central
Servicer Advance is outstanding) and other service charges imposed upon
Borrowers in connection with servicing the Qualified Loans.
(b) The Central Servicer shall be required to pay all expenses incurred by
it in connection with its servicing activities hereunder and shall not be
entitled to reimbursement therefor except as specifically provided in this
Agreement or the applicable Central Servicing Supplement.
Section 3.10. Access to Certain Documentation
Regarding the Qualified Loans.
(a) Upon the prior written request of Xxxxxx Mac received reasonably in
advance, the Central Servicer shall provide reasonable access to representatives
of Xxxxxx Mac (including its assignee or designee) to documentation regarding
the Qualified Loans during normal business hours at the offices of the Central
Servicer designated by it. The Central Servicer shall permit such
representatives to photocopy any such documentation and shall provide equipment
for that purpose. The Central Servicer shall forward to Xxxxxx Mac such reports
as may be required by Xxxxxx Mac with respect to delinquent Qualified Loans,
which reports shall include information broken down by aging of delinquency,
specifying the Qualified Loans included in each category.
(b) The Central Servicer shall maintain or cause to be maintained adequate
books and records pertaining to each Qualified Loan serviced hereunder
including, but not limited to, copies of all Mortgage Servicing Documents and
any additional documentation customarily contained in an agricultural loan
servicing file. The Central Servicer agrees that such documents shall be
maintained until the earlier of (a) seven years after the maturity of the
Qualified Loan; and (b) the date such documentation is transferred to a
successor servicer that shall have assumed the Central Servicer's
responsibilities and obligations in accordance with this Agreement. Such
documentation may be in the form of microfilm, microfiche, ledger cards,
magnetic media or other "machine readable" records, or any combination thereof.
Section 3.11. Annual Statement as to Compliance. The Central Servicer will
deliver to Xxxxxx Mac, on or before March 31 of each year, beginning with the
first March 31 that occurs at least six months after the Cut-Off Date, an
Officers' Certificate stating, as to each signer thereof, that (i) a review of
the activities of the Central Servicer during the preceding calendar year and of
its performance under this Agreement has been made under such officer's
supervision; (ii) to the best of such officer's knowledge, based on such review,
the Central Servicer has fulfilled all its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof; and (iii) with respect to each Mortgaged Property,
except as identified in writing to Xxxxxx Mac, all Hazard Insurance Premiums,
assessments, taxes and other charges that may become liens having precedence
over the related Mortgage have been paid current.
Section 3.12. Submission of Independent Public
Accountants' Reports.
(a) Within 120 days after the close of each fiscal year of the Central
Servicer, beginning with the fiscal year ending in 199_, the Central Servicer
shall deliver to Xxxxxx Mac a copy of the report of Independent accountants
respecting the Central Servicer's, or the Central Servicer's parent
corporation's, consolidated financial statements for the preceding fiscal year.
(b) On or before September 1 of each year, beginning September 1, 1997,
the Central Servicer shall cause a firm of Independent accountants (who may also
render other services to the Central Servicer) to furnish an agreed upon
procedures report to Xxxxxx Mac indicating that such firm has performed the
procedures set forth as Exhibit A hereto and detailing any findings.
Notwithstanding the foregoing, the Central Servicer shall cause such reports to
be delivered at such less frequent as Xxxxxx Mac, in its sole discretion,
consents to in writing.
Section 3.13. Inspections of the Mortgaged Properties. The Central
Servicer shall cause each Mortgaged Property to be physically inspected at least
annually to determine that (a) the Mortgaged Property has not been abandoned and
(b) the agricultural activities conducted thereon appear to be conducted in
accordance with customary and reasonable farming practices. Such inspections
shall be conducted (i) at no expense to Xxxxxx Mac, (ii) by a Person
knowledgeable regarding good farming practices for the agriculture being
conducted on the Mortgaged Property and (iii) during the production season for
the particular type of agricultural product being produced thereon. If either of
the foregoing conditions set forth in clauses (a) and (b) above is not present
with respect to any Mortgaged Property, the Central Servicer shall promptly
notify Xxxxxx Mac and shall take such action with respect thereto as may be
permitted by the related Mortgage and as may be reasonably determined by the
Central Servicer to be in the best interests of Xxxxxx Mac.
Section 3.14. Partial Releases. At the request of a Borrower, the Central
Servicer may release a portion of any Mortgaged Property from the lien of the
related Mortgage provided that: (i) the remaining portion of the Mortgaged
Property is reappraised by an appraiser in accordance with the Appraisal
Standards, (ii) the Borrower makes a prepayment in part (and pays any applicable
Yield Maintenance Amount), if necessary, such that the loan-to-value ratio of
the remaining principal amount of the related Qualified Loan outstanding after
such partial prepayment to the reappraised value of the remaining portion of the
Mortgaged Property is no greater than the maximum loan-to-value ratio provided
for similar loans in the Securities Guide, (iii) the cash flow from the
remaining portion of the Mortgaged Property is sufficient to service the
remaining indebtedness under the related Mortgage Note, and (iv) the Central
Servicer delivers to Xxxxxx Mac prior to any such partial release a Servicing
Officer's certificate certifying that such partial release meets the foregoing
conditions of this Section 3.14 and, subsequent to such partial release, a copy
of the executed partial release with appropriate recording information noted
thereon. At the Borrower's request, the Central Servicer will reschedule the
repayment of the remaining payments on the Qualified Loan to provide for the
amortization of the remaining principal balance of the Qualified Loan, after
taking into account the prepayment related to the partial release, over the
remaining term of the Qualified Loan. Any prepayments (and any applicable Yield
Maintenance Amounts) received by the Central Servicer pursuant to a partial
release shall be deposited in the Collection Account and the prepayments shall
be treated for all purposes of this Agreement as partial prepayments on the
Qualified Loans.
Section 3.15. Servicing Agreements between Central Servicer and Field
Servicers. The Central Servicer may enter into Servicing Agreements with Field
Servicers who satisfy the requirements set forth in the Securities Guide for a
portion of the servicing of some or all of the Qualified Loans. References in
this Agreement to actions taken or to be taken by the Central Servicer in
servicing the Qualified Loans include actions taken or to be taken by a Field
Servicer on behalf of the Central Servicer. Each Servicing Agreement will be
upon such terms and conditions as are permitted by the Securities Guide and are
not inconsistent with this Agreement and as the Central Servicer and the Field
Servicer have agreed. The Central Servicer and the Field Servicer may enter into
amendments thereto or different forms of Servicing Agreements and nothing herein
shall be deemed to limit in any respect the discretion of the Central Servicer
to modify or enter into different Servicing Agreements; provided, however, that
any such amendments or different forms shall not violate the provisions of this
Agreement or the Securities Guide.
Section 3.16. Successor Field Servicers. The Central Servicer shall be
entitled to terminate any Servicing Agreement in accordance with the terms and
conditions of such Servicing Agreement and without any limitation by virtue of
this Agreement; provided, however, that in the event of termination of any
Servicing Agreement by the Central Servicer or the Field Servicer, the Central
Servicer shall either act as Field Servicer of the related Qualified Loan or
enter into a Servicing Agreement with a successor Field Servicer which will be
bound by the terms of a Servicing Agreement entered into with such successor
Field Servicer. The Central Servicer shall notify Xxxxxx Mac of any termination
of any Field Servicer.
Section 3.17. Liability of the Central Servicer. Notwithstanding any
Servicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Central Servicer or a Field Servicer or
reference to actions taken through a Field Servicer or otherwise, the Central
Servicer shall remain obligated and liable to Xxxxxx Mac for the servicing of
the Qualified Loans in accordance with the provisions of Section 3.01 without
diminution of such obligation or liability by virtue of such Servicing
Agreements or arrangements or by virtue of indemnification from the Field
Servicer and to the same extent and under the same terms and conditions as if
the Central Servicer alone were servicing and administering the Qualified Loans.
For purposes of the foregoing, amounts received by a Field Servicer in
connection with a Qualified Loan or REO Property shall be deemed to have been
received by the Central Servicer. The Central Servicer shall be entitled to
enter into any agreement with a Field Servicer for indemnification of the
Central Servicer and nothing contained in this Agreement shall be deemed to
limit or modify such indemnification.
Section 3.18. No Contractual Relationship Between Field Servicer and
Xxxxxx Mac . Any Servicing Agreement that may be entered into and any other
transactions or services relating to the Qualified Loans involving a Field
Servicer in its capacity as such shall be deemed to be between the Field
Servicer and the Central Servicer alone. Xxxxxx Mac shall not be deemed a party
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to the Central Servicer or any Field Servicer under such Servicing
Agreements except as set forth in Section 3.19.
Section 3.19. Assumption or Termination of
Servicing Agreements by Xxxxxx Mac.
(a) In the event that the Central Servicer shall for any reason no longer
be acting as such hereunder (including by reason of an Event of Default) and
Xxxxxx Mac or its designee shall have assumed the duties of the Central
Servicer, Xxxxxx Mac or such designee may, at Xxxxxx Mac's sole discretion,
thereupon assume all of the rights and obligations of the Central Servicer under
each Servicing Agreement that may have been entered into. Each Servicing
Agreement shall contain provisions allowing Xxxxxx Mac to rescind such agreement
without penalty in the event the Central Servicer shall no longer be acting as
such. Xxxxxx Mac, its designee or the successor servicer for Xxxxxx Mac shall be
deemed to have assumed all of the Central Servicer's interest therein and to
have replaced the Central Servicer as a party to each Servicing Agreement to the
same extent as if such agreement had been assigned to the assuming party, except
that the Central Servicer shall not thereby be relieved of any liability or
obligations under any Servicing Agreement which arose prior to the date each
Servicing Agreement is deemed so assigned and assumed.
(b) The Central Servicer shall, upon request of Xxxxxx Mac but at the
expense of the Central Servicer: (i) deliver to the assuming party all documents
and records held by the Central Servicer relating to each Servicing Agreement
and the Qualified Loans then being serviced and an accounting of amounts
collected and held by it; (ii) prepare, execute and deliver all documents and
instruments and take all actions reasonably requested by Xxxxxx Mac or its
designee to effect the succession by Xxxxxx Mac or its designee hereunder and
the transfer of each Servicing Agreement to the assuming party; and (iii) and
otherwise use its best efforts to effect the orderly and efficient succession
hereunder and transfer of each Servicing Agreement to the assuming party.
ARTICLE IV
PAYMENTS TO XXXXXX MAC AND REPORTS
Section 4.01. Central Servicer's Report; Remittance
Reconciliation Report; Loan Servicing Report.
(a) Not later than the third Business Day of each calendar month, the
Central Servicer shall deliver to Xxxxxx Mac and Xxxxxx Mac's designee, a
Central Servicer's Report. Such Central Servicer's Report shall be in a
machine-readable format in accordance with the tape specifications and other
requirements set forth in Exhibit C hereto or in such other format or conform to
such other specifications or requirements as Xxxxxx Mac and the Central Servicer
may agree.
(b) In addition to the information required under Section 4.01(a), the
Central Servicer's Report shall contain such information as is reasonably
requested by Xxxxxx Mac, including, but not limited to the information described
below.
(i) a listing of all previously unadvanced Installment Payments
(with the interest components thereof adjusted to interest at the related
Net Mortgage Rates) on the Qualified Loans due on or prior to the
preceding Due Date that were delinquent on the preceding Remittance Date;
(ii) Central Servicer Advances made on the
preceding Remittance Date;
(iii) the compensation retained by the Central
Servicer with respect to the previous Collection Period,
itemized by category (e.g., type of fees);
(iv) the amount of reimbursement for Central
Servicer Advances withdrawn from the Collection Account
during the preceding Collection Period;
(v) an itemization of unreimbursed Central
Servicer Advances (exclusive of Nonrecoverable Advances) as
of the preceding Due Date;
(vi) an itemization of any Central Servicer
Advances which became Nonrecoverable Advances during the
previous Collection Period;
(vii) a reconciliation of each custodial account (e.g., any
Collection Accounts and REO Accounts) for the second preceding Collection
Period;
(viii) a reconciliation of Scheduled Balances
to actual balances of the Qualified Loans; and
(xi) such other information as Xxxxxx Mac may
from time to time request.
(c) On or before the tenth day of each calendar month (or if such tenth
day is not a Business Day, the next succeeding Business Day), the Central
Servicer will provide to Xxxxxx Mac and its designee a Loan Servicing Report
substantially in the form of Exhibit D hereto, which Loan Servicing Report will
provide information (including proposed remedial action to be taken by the
Central Servicer) with respect to: Qualified Loans which have been identified by
Xxxxxx Mac as "watch-listed" loans; delinquent Qualified Loans; Qualified Loans
in foreclosure; REO Qualified Loans; and bankruptcy proceedings involving
Borrowers.
(d) On a timely basis each month, the Central Servicer shall prepare, and
make available to Xxxxxx Mac or its designee upon request, a remittance
reconciliation report.
Section 4.02. Remittance Account.
(a) On or before the Closing Date, Xxxxxx Mac shall establish the
Remittance Account and provide the Central Servicer with information concerning
its location. The Central Servicer, on or before 10:00 A.M. Central Servicer's
local time on each Remittance Date, shall deposit in same day funds an amount
equal to the Qualified Loan Receipts for the preceding Collection Period.
Section 4.03. Reports of Foreclosures and Abandonment
of Mortgaged Property.
(a) Each year, beginning in 1997, the Central Servicer shall make the
reports of foreclosures and abandonments of any Mortgaged Property required by
Section 6050J of the Internal Revenue Code and provide copies of such reports to
Xxxxxx Mac. In order to facilitate this reporting process, the Central Servicer,
on or before the date required by law, shall provide to the Internal Revenue
Service and Xxxxxx Mac reports relating to each instance occurring during the
previous calendar year in which the Central Servicer (i) on behalf of Xxxxxx Mac
acquires an interest in a Mortgaged Property through foreclosure or other
comparable conversion in full or partial satisfaction of a Qualified Loan, or
(ii) knows or has reason to believe that a Mortgaged Property has been
abandoned. The reports from the Central Servicer shall be in form and substance
sufficient to meet the reporting requirements imposed by such Section 6050J.
(b) Within 30 days after disposition of any REO Property, the Central
Servicer shall provide to Xxxxxx Mac a statement of accounting for the related
Mortgaged Property and REO Account, including without limitation (i) each
category of deposit to, withdrawal from and investment earnings within such REO
Account, (ii) the loan number of the related Qualified Loan, (iii) the date such
Qualified Loan became a REO Qualified Loan by foreclosure, or by deed in lieu of
foreclosure or otherwise, (iv) the date of such disposition, (v) the gross sales
price and the related selling and other expenses, (vi) accrued interest,
calculated from the date of acquisition to the disposition date, and (vii) such
other information as Xxxxxx Mac may reasonably request.
ARTICLE V
DEFAULT
Section 5.01. Events of Default. Event of Default,
wherever used herein, means one of the following events:
(i) the Central Servicer shall fail to make any deposit (A) to
the Remittance Account required by Section 4.02 or (B) to the Collection
Account required by Section 3.02(a) and such failure shall continue
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 Central Servicer by Xxxxxx Mac (or Xxxxxx Mac's
designee); or
(ii) the Central Servicer shall fail to observe or perform in
any material respect any other of the covenants or agreements on the part
of the Central Servicer contained in this Agreement and such failure shall
continue unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Central Servicer by Xxxxxx Mac; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law or appointing a conservator or 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,
shall have been entered against the Central Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period
of 90 days; or
(iv) the Central Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities, or similar proceedings of, or
relating to, the Central Servicer or of, or relating to, all or
substantially all of the property of the Central Servicer; or
(v) the Central Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of, or commence a voluntary case under, any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its creditors, or voluntarily suspend payment of its obligations; or
(vi) the Central Servicer shall fail at any time to meet
Xxxxxx Mac's standards for eligible agricultural real estate mortgage
central servicers so that, in Xxxxxx Mac's sole discretion, the Central
Servicer's ability to comply with this Agreement, any Central Servicing
Supplement or the Securities Guide within a reasonable period of time is
adversely affected; or
(vii) a court of competent jurisdiction shall have found that
the Central Servicer or any of its principal officers has committed an act
of civil fraud or the Central Servicer or any of its principal officers
shall have been convicted of any criminal act related to the Central
Servicer's lending or mortgage selling or servicing activities or that, in
Xxxxxx Mac's sole discretion, adversely affects the Central Servicer's
reputation or Xxxxxx Mac's reputation or interests.
If an Event of Default shall occur, then, and in each and every case, so
long as such Event of Default shall not have been remedied, Xxxxxx Mac may, by
notice in writing to the Central Servicer, terminate all of the rights and
obligations of the Central Servicer under this Agreement and in and to the
Qualified Loans and the proceeds thereof; provided, that any liability of the
Central Servicer under this Agreement arising prior to such termination shall
survive such termination. On or after the receipt by the Central Servicer of
such written notice, all authority and power of the Central Servicer under this
Agreement shall pass to and be vested in Xxxxxx Mac; and, without limitation,
Xxxxxx Mac is hereby authorized and empowered to execute and deliver, on behalf
of the Central 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,
whether to complete the transfer and endorsement or assignment of the Qualified
Loans and related documents, or otherwise. If an Event of Default shall occur
and be continuing, the Central Servicer agrees to cooperate with Xxxxxx Mac in
effecting the termination of the Central Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer to Xxxxxx Mac (or its
designee) for administration by it of all cash amounts which shall at the time
be on deposit in the Collection Account or the REO Account or thereafter be
received with respect to the Qualified Loans, the delivery to Xxxxxx Mac (or its
designee) of all documents and records requested by it to enable it to assume
the Central Servicer's obligations hereunder and the reconciliation of all of
the Qualified Loans, the Collection Account and the REO Account, all at the cost
of the Central Servicer. Xxxxxx Mac or its designee shall pay over to the
Central Servicer that portion of any future proceeds of the Qualified Loans,
which, if the Central Servicer were at the time acting hereunder, it would be
permitted to receive in consideration of, or in reimbursement for, previous
services performed, or advances made, by it, net of any amounts owing from the
Central Servicer to Xxxxxx Mac.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Central Servicing Supplements. A Central Servicing Supplement
identifying the Qualified Loans to be assigned to the Central Servicer for
servicing on each Closing Date and establishing the terms of such servicing
shall be substantially in the form annexed hereto as Exhibit B (with such
changes thereto as Xxxxxx Mac and the Central Servicer shall agree to), shall
have attached thereto a Schedule of Qualified Loans dated as of the date thereof
and shall be executed by Xxxxxx Mac and the Central Servicer as of the related
Closing Date. Each Central Servicing Supplement shall identify and relate only
to the particular Qualified Loans identified in the attached Schedule of
Qualified Loans. Such Schedule of Qualified Loans shall list all Qualified Loans
assigned to the Central Servicer for servicing on and after the related Closing
Date and shall show as to each Qualified Loan the information provided for in
Attachment 1 to Exhibit B hereto. The Central Servicing Supplement together with
this Master Central Servicing Agreement shall constitute the Central Servicing
Agreement with respect to the related Qualified Loans.
Section 6.02 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of Xxxxxx Mac, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive or any rights, remedies, powers or privileges
provided by law.
Section 6.03 Counterparts. This Agreement may be executed in any number of
separate counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
Section 6.04 Governing Law. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, FEDERAL LAW.
TO THE EXTENT FEDERAL LAW INCORPORATES STATE LAW, THAT STATE LAW
SHALL BE THE LAWS OF THE STATE OF NEW YORK.
Section 6.05 Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given (a) when delivered by
hand, (b) two business days after it is mailed, certified or registered, return
receipt requested, with postage prepaid, (c) when sent by telex, telegram or
telecopy (with receipt confirmed) or (d) one business day after it is sent by
Express Mail, FedEx or other express delivery service, as follows:
(a) if to the Central Servicer, to it at:
[Central Servicer]
[Address]
Attention:
Telecopy Number:
(b) if to Xxxxxx Mac, to it at:
Federal Agricultural Mortgage Corporation
000 Xxxxxxxxxx Xx., X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Vice President - Mortgage-Backed
Securities
Telecopy Number: 000-000-0000
or to such other persons, addresses and telecopier numbers as a party shall
specify as to itself by notice in writing to the other party.
Section 6.06 Survival and Termination of Agreement. All covenants,
agreements, representations and warranties made herein and in any certificate,
document or statement delivered pursuant hereto or in connection herewith shall
survive the execution and delivery of this Agreement until the later of the
receipt by Xxxxxx Mac or its assignee of payment in full in respect of all
Qualified Loans and the satisfaction of all of the Mortgages.
Section 6.07 Entire Agreement. This Agreement (which, for this purpose,
includes the Central Servicing Supplement) sets forth the entire agreement of
the parties hereto with respect to its subject matter, and supersedes all
previous understandings, written or oral, with respect thereto.
Section 6.08 Waiver of Jury Trial. The Central Servicer and Xxxxxx Mac
hereby irrevocably and unconditionally waive trial by jury in any legal action
or preceding relating to this Agreement or the Central Servicing Supplement.
Section 6.09 Severability. Any provision of this Agreement or the Central
Servicing Supplement which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or thereof or affecting the validity, enforceability
or legality of any such provision in any other jurisdiction.
Section 6.10 Assignability. Except as herein contemplated, neither this
Agreement nor the Central Servicing Supplement shall be assigned by either of
the parties hereto without the prior written consent of the other party;
provided, however, that Xxxxxx Mac may assign this Agreement to any affiliate of
Xxxxxx Mac or the holder of the Qualified Loans without prior notice or consent
of the Central Servicer.
Section 6.11 Third Party Beneficiaries. Any assignee or designee of Xxxxxx
Mac, including an assignee holding the Qualified Loans for the benefit of
holders of securities guaranteed by Xxxxxx Mac, is a third party beneficiary to
this Agreement and the Central Servicing Supplement entitled to enforce any
representations and warranties, indemnities and obligations of the parties.
Except as otherwise provided, the parties to this Agreement hereby manifest
their intent that no third party other than such assignee or designee, including
an assignee for the benefit of such holders of securities, shall be deemed a
third party beneficiary of this Agreement or the Central Servicing Supplement,
and specifically that the Borrowers are not third party beneficiaries of this
Agreement or the Central Servicing Supplement.
IN WITNESS WHEREOF, Xxxxxx Mac and the Central Servicer have caused their
names to be signed hereto by their respective officers, duly authorized and
their respective corporate seals, duly attested, to be hereunto affixed, all as
of the 1st day of ___, 199_.
FEDERAL AGRICULTURAL MORTGAGE CORPORATION
By:
Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
[CENTRAL SERVICER]
By:
Name:
Title:
