EXECUTION COPY
SUBSERVICING AGREEMENT
SUBSERVICING AGREEMENT dated as of November 1, 1998 by and among
ContiMortgage Corporation, a Delaware corporation (the "Servicer"), ContiWest
Corporation, a Nevada corporation, ContiSecurities Asset Funding Corp., a
Delaware corporation (the "Depositor"), Continental Grain Company, a Delaware
corporation (the "Subservicer") and Manufacturers and Traders Trust Company, a
New York banking corporation (the "Trustee"), in its capacity as Trustee under
various Pooling and Servicing Agreements listed on the attached Schedule A,
which Schedule may be amended from time to time by delivery of notice thereof to
the parties hereto and to the related Certificate Insurers (the "Pooling
Agreements") and on behalf of the related securitization trusts (the "Trusts")
formed pursuant to the Pooling Agreements.
WHEREAS, the Servicer and the Trustee have previously entered into the
Pooling Agreements, among the Servicer, the Trustee, the Depositor and the other
parties named therein pursuant to which the Servicer is to act as servicer to
service and administer certain mortgage loans (the "Mortgage Loans") owned by
the Trusts in accordance with the Pooling Agreements;
WHEREAS, the Servicer, pursuant to Section 8.03 of the Pooling
Agreements, desires to appoint the Subservicer to perform certain of the
Servicer's servicing obligations under the Pooling Agreements;
WHEREAS, the Depositor on behalf of the Trusts desires the Subservicer
to perform certain of the Servicer's servicing obligations to benefit the
Trusts; and
WHEREAS, the Trusts wish to obtain the benefit of the subservicing
arrangements to be provided by the Subservicer.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the parties hereto, intending to be legally bound, hereby
agree as follows:
DEFINITIONS
.1. Definitions. The following terms have the following meanings when
used in this Agreement.
"Agreement" means this Subservicing Agreement, and all amendments
hereof and supplements hereto.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banking institutions in The City of New York, or in
the city in which the principal corporate trust office of the Trustee is
located, are authorized or obligated by law or executive order to be
closed, and when used with reference to the determination of LIBOR, shall
also exclude any day on which banks are not open for dealings in dollar
deposits in the London interbank market.
"Delinquency Advances" with respect to any Trust, has the meaning set
forth in the related Pooling Agreement.
"Depositor" has the meaning set forth in the introductory paragraph
hereto.
"LIBOR" means, with respect to any period commencing on a Monthly
Remittance Date and ending on the day before the next Monthly Remittance
Date, the rate of interest (calculated on a per annum basis) equal to the
one month London Interbank Offered Rate as reported on the display
designated as "Page 3750" on the Telerate Service (or such other display as
may replace Page 3750 on the Telerate Service) on the related LIBOR
Determination Date.
"LIBOR Determination Date" means, with respect to any period
commencing on a Monthly Remittance Date and ending on the day before the
next Monthly Remittance Date, the second Business Day prior to such earlier
Monthly Remittance Date.
"Monthly Remittance Date" means the 10th day of each month or, if such
day is not a Business Day, the Business Day succeeding such day.
"Mortgage Loans" has the meaning set forth in the first WHEREAS clause
in the Recitals.
"Person" means any legal person, including any individual,
corporation, limited liability company, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Pooling Agreements" has the meaning set forth in the introductory
paragraph hereto.
"Reimbursement Available Funds" has the meaning set forth in Section
2.03(b) hereof.
"Right" has the meaning set forth in Section 6.02 hereof.
"Servicer" has the meaning set forth in the introductory paragraph
hereto.
"Subservicer" has the meaning set forth in the introductory paragraph
hereto.
"Subservicer Advance" has the meaning set forth in Section 2.02(a)
hereof.
"Subservicer Advance Notice" has the meaning set forth in Section
2.02(b) hereof.
"Subservicing Fee" has the meaning set forth in Section 2.03(a)
hereof.
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"Trustee" has the meaning set forth in the introductory paragraph
hereto
"Trusts" has the meaning set forth in the introductory paragraph
hereto.
.2. Other Terms. Capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the related Pooling Agreements.
THE SERVICER AND THE SUBSERVICER
.1. Appointment of the Subservicer; Direction to Trustee. Pursuant to
the Pooling Agreements, the Servicer and the Trusts hereby appoint the
Subservicer to perform certain of the Servicer's servicing obligations under the
Pooling Agreements as set forth in Section 2.02 hereof, which appointment the
Subservicer hereby accepts. The Subservicer agrees to perform the obligations
set forth in Section 2.02 hereof in accordance with the servicing standards set
forth in the Pooling Agreements. The Subservicer undertakes no obligations of
the Servicer under the Pooling Agreements other than those expressly set forth
in Section 2.02 hereof. Nothing in this Agreement shall relieve the Servicer of
its obligations under the Pooling Agreements or in any way limit such
obligations.
The Depositor hereby directs the Trustee to execute and deliver this
Agreement on behalf of each Trust.
.2. Obligations of the Subservicer.
(a) The Subservicer hereby agrees to advance, until such advancing
obligation terminates pursuant to Section 4.01(a) hereof, to the Trustee on
behalf of the Trusts, on a Trust-by-Trust basis, on each Monthly Remittance
Date, an amount (the "Subservicer Advance") equal to the Delinquency Advance (if
any) for each Trust for such Monthly Remittance Date, provided that, in no event
shall the Subservicer be required to advance on any Monthly Remittance Date
aggregate Subservicer Advances for all Trusts in excess of $85,000,000, less the
amount of any outstanding unreimbursed Subservicer Advances. In the event that
the aggregate Subservicer Advances which Subservicer makes on any Monthly
Remittance Date are less than the aggregate Delinquency Advances required to be
made to the Trusts on that Monthly Remittance Date under the Pooling Agreements,
then the Subservicer shall allocate the Subservicer Advances among the Trusts
pro rata to the Delinquency Advances for each Trust, and the difference between
the Subservicer Advance and the total Delinquency Advance shall be advanced to
the Trust by the Servicer as a Delinquency Advance. The parties hereto agree
that if the Servicer is not required to advance any portion of a Delinquency
Advance as set forth in the relevant sections of the Pooling Agreements, then
the Subservicer shall likewise not be required to make any Subservicer Advance
with respect thereto.
(b) No later than Noon on the Business Day preceding each Monthly
Remittance Date, the Servicer shall deliver to the Subservicer and the Trustee a
notice (the "Subservicer Advance Notice"), in the form of Exhibit I hereto,
setting forth the amount of the Subservicer Advance, if any, due on such Monthly
Remittance Date.
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.3. Subservicing Fee; Reimbursement for Subservicer Advances; Priority.
(a) As compensation for the rendering of the services specified herein,
the Subservicer shall be entitled to receive a subservicing fee (the
"Subservicing Fee") from each Trust. The Subservicing Fee for any period shall
equal the product of (i) LIBOR plus ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (▇▇) ▇/▇▇▇, (▇▇▇) the
number of days in the period, and (iv) the average amount of unreimbursed
Subservicer Advances during the period. In no event shall the Subservicing Fee
payable to the Subservicer for any month exceed the Servicing Fee payable to the
Servicer. The amount of any Subservicer Fee paid to the Subservicer shall
reduce, dollar-for-dollar, the amount of the Servicing Fee payable to the
Servicer.
(b) (i) The Servicer collects principal, interest and certain
fees on the Mortgage Loans, as agent for and on behalf of the Trusts
pursuant to and in accordance with the Pooling Agreements. The portion
of these collections that is available, in accordance with the terms
and provisions of the Pooling Agreements, for the reimbursement of
Delinquency Advances and the payment of the Servicing Fee is referred
to herein as the "Reimbursement Available Funds." The Reimbursement
Available Funds are owned by, and are the property of, the related
Trusts.
(ii) The Servicer agrees that it shall have no claim against the
Trusts to receive or retain any portion of the reimbursement for
Subservicer Advances. The Subservicer acknowledges that the Servicer,
in paying the Subservicing Fee and such reimbursement amounts to the
Subservicer, is paying such amounts on behalf of the Trusts only,
solely from funds and assets of the Trust, and is not liable to the
Subservicer to pay any such amounts from its own funds. The parties
hereto agree that the Servicer shall be acting in the capacity as
agent of the Trusts when it performs its collection duties in
accordance with the Pooling Agreements and remittance duties
hereunder.
(c) On each Business Day, the Subservicer shall be paid, by remittance by
the Servicer acting as an agent of the Trusts, out of the Reimbursement
Available Funds, available on that day, an amount equal to any accrued but
unpaid Subservicing Fee through the end of the prior day. After payment of the
Subservicing Fee, the Servicer shall be paid, by remittance by the Servicer
acting as an agent of the Trusts, out of the Reimbursement Available Funds an
amount equal to any accrued but unpaid Servicing Fee. The excess of the
Subservicer Fee due on any Business Day over the amount of Subservicer Fee
actually paid on such Business Day shall be carried forward and shall be paid
first out of the Reimbursement Available Funds before any other amounts are paid
under this subsection on each Business Day thereafter until such carried-forward
amounts are paid in full.
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(d) On each Business Day, following the payment of the Subservicing Fee and
the Servicing Fee, the remaining amount, if any, of available Reimbursement
Available Funds shall be used to reimburse the Subservicer, by remittance by the
Servicer acting as an agent of the Trusts, for Subservicer Advances made by the
Subservicer and the Servicer for Delinquency Advances made by the Servicer
through the prior day. Prior to the termination pursuant to Section 4.01(a) of
the Subservicer's obligation to advance, the remaining Reimbursement Available
Funds shall be reimbursed to the Subservicer and the Servicer in the proportion
that the outstanding unreimbursed Subservicer Advances made by the Subservicer
bear to the outstanding unreimbursed Delinquency Advances made by the Servicer.
After the Subservicer's obligations to advance have been terminated pursuant to
Section 4.01(a) hereof, all remaining Reimbursement Available Funds shall first
be used to reimburse the Subservicer for outstanding unreimbursed Subservicer
Advances.
(e) Notwithstanding anything herein to the contrary, the parties hereto
agree that the sum of (i) the Subservicing Fee paid to the Subservicer, plus
(ii) the Servicing Fee paid to the Servicer, shall never exceed the Servicing
Fee which would otherwise be payable under the terms of the Pooling Agreements,
if the effect of this Agreement were not taken into account. Notwithstanding
anything herein to the contrary, the parties hereto agree that the sum of (i)
any reimbursement for Subservicer Advances made by the Subservicer, plus (ii)
any reimbursement for Delinquency Advances made by the Servicer, shall never
exceed the reimbursement for Delinquency Advances which would otherwise be
payable under the terms of the Pooling Agreements, if the effect of this
Agreement were not taken into account.
REPRESENTATIONS, WARRANTIES AND COVENANTS
.1. Representations, Warranties and Covenants of the Subservicer. The
Subservicer hereby represents and warrants to the Trustee as follows:
(a) The Subservicer is a Delaware corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
is in compliance with the laws of each state necessary to enable it to
perform its obligations under the terms of this Agreement; the Subservicer
has the full corporate power and authority to execute and deliver this
Agreement and to perform in accordance herewith; the execution, delivery
and performance of this Agreement by the Subservicer and the consummation
of the transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and enforceable
obligation of the Subservicer; and all requisite corporate action has been
taken by the Subservicer to make this Agreement valid and binding upon the
Subservicer in accordance with its terms;
(b) Neither the execution and delivery of this Agreement, nor the
fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Subservicer's charter or by-laws or any
material agreement or instrument to which the Subservicer is now a party or
by which it is bound, or constitute a default or result in an acceleration
under any of the foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Subservicer or its
property is subject;
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(c) There is no action, suit, proceeding, or investigation pending or,
to the knowledge of the Subservicer, threatened against the Subservicer
which, either in any one instance or in the aggregate, may result in any
material adverse change in the business, operations, financial condition,
properties or assets of the Subservicer, or in any material impairment of
the right or ability of the Subservicer to carry on its business, or of any
action taken or to be taken in connection with the obligations of the
Subservicer contemplated herein, or which would materially impair the
ability of the Subservicer to perform under the terms of this Agreement;
and
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Subservicer of or compliance by the Subservicer with
this Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such approval has been obtained prior to the
date hereof.
.2. Representations, Warranties and Covenants of the Servicer. The
Servicer hereby represents and warrants to the Subservicer and the Trustee as
follows:
(a) The Servicer is a Delaware corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
is in compliance with the laws of each state necessary to enable it to
perform its obligations under the terms of this Agreement; the Servicer has
the full corporate power and authority to execute and deliver this
Agreement and to perform in accordance herewith; the execution, delivery
and performance of this Agreement by the Servicer and the consummation of
the transactions contemplated hereby have been duly and validly authorized;
this Agreement evidences the valid, binding and enforceable obligation of
the Servicer; and all requisite corporate action has been taken by the
Servicer to make this Agreement valid and binding upon the Servicer in
accordance with its terms;
(b) Neither the execution and delivery of this Agreement, nor the
fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Servicer's charter or by-laws or any
material agreement or instrument to which the Servicer is now a party or by
which it is bound, or constitute a default or result in an acceleration
under any of the foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Servicer or its property
is subject;
(c) There is no action, suit, proceeding, or investigation pending or,
to the knowledge of the Servicer, threatened against the Servicer which,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties
or assets of the Servicer, or in any material impairment of the right or
ability of the Servicer to carry on its business substantially as now
conducted, or of any action taken or to be taken in connection with the
obligations of the Servicer contemplated herein, or which would materially
impair the ability of the Servicer to perform under the terms of this
Agreement; and
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(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer of or compliance by the Servicer with this
Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such approval has been obtained prior to the
date hereof.
REMOVAL; RESIGNATION; MERGER; ASSIGNMENT
.1. Term of Agreement; Termination of Subservicing.
(a) (i) The Subservicer's obligation to make Subservicer Advances
hereunder shall terminate on October 15, 1999 except as such obligation may
be terminated earlier as set forth in this Section 4.01(a) and such
obligation may be extended if agreed to in writing by the Servicer and the
Subservicer, with notice given to the other parties hereto and the related
Certificate Insurers. The Servicer may terminate the Subservicer upon five
days prior written notice to each of the other parties hereto and the
related Certificate Insurers, and upon such termination the Subservicer's
obligation to make Subservicer Advances shall simultaneously terminate. In
the event that the Servicer resigns or is terminated pursuant to the terms
of the Pooling Agreements, (x) the Trustee or a successor servicer may
terminate the Subservicer without payment of any fee and upon such
termination the Subservicer's obligation to make Subservicer Advances shall
simultaneously terminate or (y) the Subservicer may immediately terminate
its obligation to make Subservicer Advances upon notice to the parties
hereto and the related Certificate Insurers.
(ii) In the event that the Subservicer fails to timely receive any
amounts due and payable to it from any Trust, the Subservicer may terminate
its obligation to make Subservicer Advances upon five days notice to each
of the other parties hereto and the related Certificate Insurers.
(b) Notwithstanding any termination of the Subservicer's advancing
obligation, the Subservicer's right to reimbursement for unpaid Subservicing
Fees and unreimbursed Subservicer Advances shall survive any such termination
until such amounts have been paid in full. Following any termination of the
Subservicer hereunder, the Servicer (or, if applicable, the successor Servicer
appointed pursuant to the related Pooling Agreement) shall, on behalf of the
related Trust, be required to continue to remit to the Subservicer amounts due
to it in respect of unpaid Subservicing Fees and unreimbursed Subservicer
Advances, as calculated in and provided by Article II hereof until such amounts
have been paid in full.
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.2. Merger or Consolidation of the Subservicer. The Subservicer may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets to any Person, in which case any Person resulting from any
merger or consolidation to which the Subservicer shall be a party, or any Person
succeeding to the business of the Subservicer, shall be the successor of the
Subservicer, as the case may be, hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereof, anything
herein to the contrary notwithstanding; provided, however, that the successor or
surviving Person to the Subservicer shall be qualified to act as a subservicer
in accordance with Section 8.03 of the Pooling Agreements.
.3. Assignment. With the prior written consent of the Servicer and the
Certificate Insurer with respect to the related Trust, the Subservicer may
assign its rights and obligations hereunder to any institution which qualifies
as a "Subservicer" under each Pooling Agreement.
LIMITATION ON LIABILITY; INDEMNIFICATION
.1. Limitation on Liability of the Subservicer; Indemnification.
(a) The Subservicer and any director, officer, employee or agent of
the Subservicer may rely in good faith on any document of any kind which,
prima facie, is properly executed and submitted by any Person respecting
any matters arising thereunder. The Subservicer and any director, officer,
employee or agent of the Subservicer shall be indemnified and held harmless
by the Servicer against any loss, liability or expense incurred in
connection with any legal action relating to this Agreement or the Pooling
Agreements, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or gross negligence in the performance of
its duties hereunder.
(b) To the extent that the Subservicer incurs any loss, liability or
expense arising out of or in connection with this Agreement, the Servicer
hereby assigns to the Subservicer the Servicer's right to indemnification
from the Trust Estate pursuant to Section 8.05 of the Pooling Agreements;
provided, however, that in the event the Servicer seeks indemnification
pursuant to Section 8.05 of the Pooling Agreements for itself from the
Trust Estate, the Subservicer shall be indemnified pursuant to clause (a)
hereof.
(c) The Subservicer shall not be under any obligation to appear in,
prosecute or defend any legal action unless such action is directly related
to its duties under this Agreement and, in its opinion, does not involve it
in any expense or liability; provided, however, that the Subservicer may in
its discretion undertake any such action which it may deem necessary or
desirable with respect to this Agreement and the rights and duties of the
parties hereto. In such event, pursuant to clause (b) above, the legal
expenses and costs of such action and any liability resulting therefrom
(except any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder) shall be expenses, costs and liabilities of either the Servicer
or the Trust Estate. In the case of such reimbursement from the Trust
Estate, the Subservicer shall be entitled to be reimbursed therefor only
from the amounts otherwise distributable on the Class R Certificates as and
to the extent provided in Section 8.05 of the Pooling Agreements, any such
right of reimbursement being prior to the rights of the Class R
Certificateholders to receive any such amount.
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.2. Indemnification of the Trustee. The Trustee and any director,
officer, employee or agent of the Trustee shall be indemnified and held harmless
by the Servicer against any loss, liability or expense incurred in connection
with any legal action relating to this Agreement or the Pooling Agreements,
other than any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence by the Trustee or by reason of
reckless disregard of its obligations and duties hereunder.
MISCELLANEOUS
.1. Inconsistencies with Pooling Agreements; Amendment to Subservicing
Agreement and the Pooling Agreements.
(a) This Agreement may be amended from time to time by written
agreement signed by the parties hereto.
(b) The Servicer hereby agrees that it shall not amend the Pooling
Agreements in any way that would affect the rights or obligations of the
Subservicer hereunder without the prior written consent of the Subservicer.
(c) In the event that this Agreement is determined to constitute an
amendment to the Pooling Agreements, then this Agreement shall be deemed to
amend the Pooling Agreement as follows: (i) The Servicer, the Trustee and
the Trust may enter into Sub-servicing Agreements with a Person meeting the
qualifications set forth in the Pooling Agreement and may have obligations
under such agreement with respect to the subservicer including without
limitation the obligation to make reimbursements for Delinquency Advances
and to pay the Servicing Fee, provided that such obligations do not exceed
the obligations otherwise set forth in the Pooling Agreements with respect
to the Servicer; and (ii) Continental Grain Company and any other Person to
which the Servicer, the Trustee and the Certificate Insurer have consented
in writing shall be eligible to act as a sub-servicer notwithstanding
anything to the contrary therein.
.2. Indulgences, Etc. Neither the failure nor any delay on the part of
any party to exercise any right, remedy, power or privilege (each, a "Right")
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any Right preclude any other or further exercise of the same
or of any other Right, nor shall any waiver of any Right with respect to any
occurrence be construed as a waiver of such Right with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed
by the party asserted to have granted such waiver.
.3. Controlling Law; Jurisdiction.
(a) This Agreement and all questions relating to its validity,
interpretation, performance and enforcement (including, without limitation,
provisions concerning limitations of actions), shall be governed by and
construed in accordance with the laws of the State of New York,
notwithstanding any conflict-of-laws doctrines of the State of New York or
other jurisdictions to the contrary, and without the aid of any canon,
custom or rule of law requiring construction against the draftsman.
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(b) The parties hereto hereby irrevocably submit to the jurisdiction
of the United States District Court for the Southern District of New York
and any court in the State of New York located in the City and County of
New York, and any appellate court from any thereof, in any action, suit or
proceeding brought against it or in connection with this Agreement or any
of the related documents or the transactions contemplated hereunder or for
recognition or enforcement of any judgment, and the parties hereto hereby
irrevocably and unconditionally agree that all claims in respect of any
such action or proceeding may be heard or determined in such New York State
court or, to the extent permitted by law, in such federal court. The
parties hereto agree that a final judgment in any such action, suit or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. To the
extent permitted by applicable law, the parties hereto hereby waive and
agree not to assert by way of motion, as a defense or otherwise in any such
suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of such courts, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that the related documents or the subject matter
thereof may not be litigated in or by such courts.
.4. Waiver of Jury Trial. Each of the parties hereby irrevocably waives
all right to a trial by jury in any action, proceeding or counterclaim arising
out of or relating to this Agreement, any other transaction document or any
instrument or document delivered hereunder or thereunder.
.5. Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received only when delivered
(personally, by courier service such as FedEx, or by other messenger) against
receipt or three days after when deposited in the United States mails, first
class postage prepaid, addressed as set forth below:
(i) If to Servicer:
ContiMortgage Corporation
One ▇▇▇▇▇ Park
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Senior Vice President
and Chief Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to Subservicer:
Continental Grain Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Senior Corporate Vice President
and Chief Legal Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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(iii) If to the Trustee:
Manufacturers and Traders Trust Company
▇▇▇ ▇&▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
In addition, notice by mail shall be by air mail if posted outside of
the continental United States. Any party may alter the address to which
communications or copies are to be sent by giving notice of such change of
address in conformity with the provisions of this paragraph for the giving of
notice.
.6. Binding Nature of Agreement. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective permitted
successors and assigns notwithstanding any provision of any Pooling Agreement
that might deem this Agreement to be binding only upon the Servicer or
Subservicer.
.7. Provisions Separable. The provisions of this Agreement are
independent of and separate from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
.8. Counterparts. For the purpose of facilitating the execution of this
Agreement and or other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which shall be deemed to be an original,
and together shall constitute and be one and the same instrument.
.9. Entire Agreement; Amendment of this Agreement. This Agreement
contains the entire understanding between the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous agreements
and understandings, inducements or conditions, express or implied, oral or
written, except as herein contained. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof. This Agreement may not be modified or amended other
than by an agreement in writing. This Agreement may not be amended in a manner
adverse to the interests of the related Certificate Insurers without the prior
written consent of such related Certificate Insurers.
.10. Paragraph Headings. The paragraph headings in this Agreement are
for convenience only; they form no part of this Agreement and shall not affect
its interpretation.
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.11. Advice from Counsel. The parties understand that this Agreement is
a legally binding agreement that may affect such party's rights. Each party
represents to the other that it has received legal advice from counsel of its
choice regarding meaning and legal significance of this Agreement and that it is
satisfied with its legal counsel and the advice received from it.
.12. Judicial Interpretation. Should any provision of this Agreement or
any of the other transaction documents require judicial interpretation, it is
agreed that a court interpreting or construing the same shall not apply a
presumption that the terms hereof shall be more strictly construed against any
Person by reason of the rule of construction that a document is to be construed
more strictly against the Person who itself or through its agent prepared the
same, it being agreed that all Parties have participated in the preparation of
this Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
12
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their proper and duly authorized officers as of the
date first above written.
CONTIMORTGAGE CORPORATION,
as Servicer and as Seller
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
CONTINENTAL GRAIN COMPANY,
as Subservicer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
CONTISECURITIES ASSET FUNDING CORP.,
as Depositor
By: /s/ ▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Authorized Signatory
By: /s/ ▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
CONTIWEST CORPORATION,
as Seller
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Assistant Secretary
[Signature Page to Subservicing Agreement]
13
MANUFACTURERS AND TRADERS
TRUST COMPANY,
as Trustee and on behalf of the Trusts
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
For the purpose of Section 6.01(c) only and
as to acceptability of Subservicer under the related
Pooling Agreements
CONSENTED TO BY:
MBIA INSURANCE CORPORATION,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Manager
FINANCIAL GUARANTY INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
[Signature Page to Subservicing Agreement--con't]
14
SCHEDULE A
List of Pooling Agreements
SERIES POOLING AGREEMENT
1994-3 Pooling and Servicing Agreement, dated as of June 1, 1994, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller and Manufacturers and Traders
Trust Company, as Trustee
1994-4 Pooling and Servicing Agreement, dated as of August 1, 1994, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller and Manufacturers and Traders
Trust Company, as Trustee
1994-5 Pooling and Servicing Agreement, dated as of December 1, 1994, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller and Manufacturers and Traders
Trust Company, as Trustee
1995-1 Pooling and Servicing Agreement, dated as of March 1, 1995, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller and Manufacturers and Traders
Trust Company, as Trustee
1995-2 Pooling and Servicing Agreement, dated as of May 1, 1995, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller and Manufacturers and Traders
Trust Company, as Trustee
1995-3 Pooling and Servicing Agreement, dated as of August 1, 1995, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller and Manufacturers and Traders
Trust Company, as Trustee
1995-4 Pooling and Servicing Agreement, dated as of November 1, 1995, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller and Manufacturers and Traders
Trust Company, as Trustee
1996-1 Pooling and Servicing Agreement, dated as of February 1, 1996, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller and Manufacturers and Traders
Trust Company, as Trustee
A-1
1996-2 Pooling and Servicing Agreement, dated as of June 1, 1996, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller and Manufacturers and Traders
Trust Company, as Trustee
1996-3 Pooling and Servicing Agreement, dated as of August 1, 1996, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller and Manufacturers and Traders
Trust Company, as Trustee
1996-4 Pooling and Servicing Agreement, dated as of December 1, 1996, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller, ContiWest Corporation, as
Seller and Manufacturers and Traders Trust Company, as Trustee
1997-1 Pooling and Servicing Agreement, dated as of February 1, 1997, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller, ContiWest Corporation, as
Seller and Manufacturers and Traders Trust Company, as Trustee
1997-2 Pooling and Servicing Agreement, dated as of March 1, 1997, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller, ContiWest Corporation, as
Seller and Manufacturers and Traders Trust Company, as Trustee
1997-3 Pooling and Servicing Agreement, dated as of June 1, 1997, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller, ContiWest Corporation, as
Seller and Manufacturers and Traders Trust Company, as Trustee
1997-4 Pooling and Servicing Agreement, dated as of September 1, 1997, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller, ContiWest Corporation, as
Seller and Manufacturers and Traders Trust Company, as Trustee
1997-5 Pooling and Servicing Agreement, dated as of December 1, 1997, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller, ContiWest Corporation, as
Seller and Manufacturers and Traders Trust Company, as Trustee
A-2
1998-1 Pooling and Servicing Agreement, dated as of March 1, 1998, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller, ContiWest Corporation, as
Seller and Manufacturers and Traders Trust Company, as Trustee
1998-2 Pooling and Servicing Agreement, dated as of June 1, 1998, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller, ContiWest Corporation, as
Seller and Manufacturers and Traders Trust Company, as Trustee
1998-3 Pooling and Servicing Agreement, dated as of September 1, 1998, among
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage
Corporation, as Servicer and as Seller, ContiWest Corporation, as
Seller and Manufacturers and Traders Trust Company, as Trustee
A-3
EXHIBIT I
Form of Subservicer Advance Notice
_______, _____
Continental Grain Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: _____________
Re: Subservicing Agreement, dated November 1, 1998;
Notice of Subservicer Advance
Pursuant to Section 2.02(b) of the Subservicing Agreement, dated as of
November 1, 1998 (the "Subservicing Agreement"), among ContiMortgage Corporation
(the "Servicer"), ContiWest Corporation, as Seller, ContiSecurities Asset
Funding Corp., as Depositor, Continental Grain Company (the "Subservicer") and
Manufacturers and Traders Trust Company (the "Trustee"), the undersigned hereby
notifies you that a Subservicer Advance in the amount of $_________ is due on
the Monthly Remittance Date occurring on ________, ___. The computation of the
amount of the Subservicer Advance is set forth below.
Sum of Interest Amount on
Remittance Amount and deposit in related Amount of
Name of Principal Remittance Principal and Delinquency Amount of
Trust Amount Interest Account Advance Subservicer Advance
------- ---------------------- ------------------- ----------- -------------------
------- ---------------------- ------------------- ---------- -------------------
Totals
Please remit the amount of the Subservicer Advance directly to
Manufacturers and Traders Trust Company (the "Trustee") at the account listed
below by Noon on the Business Day preceding the Monthly Remittance Date.
To:
Account No:
Reference:
Very truly yours,
CONTIMORTGAGE CORPORATION, as
Servicer
By:
------------------------------
Name:
Title:
cc: Manufacturers and Traders Trust Company
▇▇▇ ▇&▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration