EXECUTION COPY
EXHIBIT 99.4
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AMENDMENT AGREEMENT NO. 1
BY AND BETWEEN
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT CORPORATION
AND
CENDANT MORTGAGE CORPORATION
DATED AS OF
JANUARY 2, 2001
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AMENDMENT AGREEMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇, dated as of January 2, 2001 (this
"Agreement"), by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT CORPORATION, a Delaware
corporation, with offices located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ("MLCC"), and CENDANT MORTGAGE CORPORATION d/b/a PHH Mortgage
Services, a New Jersey corporation, with offices located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("Cendant").
WHEREAS, MLCC and Cendant are parties to a Servicing Rights
Purchase and Sale Agreement, dated as of January 28, 2000 (the "Servicing
Agreement"), a copy of which is attached hereto as Exhibit A;
WHEREAS, MLCC and Cendant are parties to a Portfolio Servicing
Agreement, dated as of January 28, 2000 (the "Portfolio Agreement"), a copy of
which is attached hereto as Exhibit B;
WHEREAS, MLCC and Cendant are parties to a Loan Sub-Servicing
Agreement, dated as of January 28, 2000 (the "Sub-Servicing Agreement"), a copy
of which is attached hereto as Exhibit C;
WHEREAS, MLCC and Cendant have entered into a Servicing Rights
Purchase and Sale Agreement, a Trademark Use Agreement, an Origination
Assistance Agreement and a Loan Purchase and Sale Agreement, each dated as of
December 15, 2000 and each with an effective date as of the date hereof
(collectively, the "New Agreements"); and
WHEREAS, each of MLCC and Cendant, having entered into the New
Agreements, wishes to amend the Servicing Agreement, the Portfolio Agreement and
the Sub-Servicing Agreement in order to properly reflect the current
relationships between the parties;
NOW, THEREFORE, in consideration of the foregoing and the
respective covenants and agreements set forth in this Agreement, the parties
hereto agree as follows:
SECTION 1. Amendments to the Servicing Agreement. The
Servicing Agreement is hereby amended as follows:
(a) Section 1.01. Section 1.01 of the Servicing Agreement
is amended by:
i. Deleting the definition of "Additional
Collateral" and replacing it with the
following: "ADDITIONAL COLLATERAL means,
with respect to any Mortgage 100 Loan or
Parent Power Mortgage Loan, the marketable
securities subject to a security interest
pursuant to the related Mortgage 100 Pledge
Agreement or the Parent Power Guaranty and
Security Agreement for Securities Account."
ii. Deleting the definition of "Cendant Mortgage
Loan" and replacing it with the following:
"CENDANT MORTGAGE LOAN means a
Mortgage Loan originated by Purchaser
pursuant to either (i) the 1997 Origination
Agreement or (ii) the 2000 Origination
Agreement."
iii. Adding the words "as amended from time to
time in accordance with the terms thereof"
to the end of the definition of "MLCC
Portfolio Servicing Agreement."
iv. Deleting the definition of "Origination
Agreement" and replacing it with the
following: "ORIGINATION AGREEMENTS means the
1997 Origination Agreement and the 2000
Origination Agreement."
v. Adding the following definition: "1997
ORIGINATION AGREEMENT means the Mortgage
Loan Purchase and Services Agreement dated
as of September 24, 1997 between Seller and
PHH Mortgage Services Corporation, as the
same may be amended from time to time in
accordance with the terms thereof."
vi. Adding the following definition: "2000
ORIGINATION AGREEMENT means the Origination
Assistance Agreement dated as of December
15, 2000 between the Seller and the
Purchaser, as the same may be amended from
time to time in accordance with the terms
thereof."
vii. Deleting the definition of "Permission
Agreement" and replacing it with the
following definition: "PERMISSION AGREEMENT
means (i) from January 28, 2000 through
January 1, 2001, the Permission Agreement
dated as of January 28, 2000 between Seller
and Purchaser and (ii) on and after January
2, 2001, the Trademark Use Agreement."
viii. Adding the following definition: "TRADEMARK
USE AGREEMENT means the Trademark Use
Agreement dated as of December 15, 2000,
with an effective date as of January 2,
2001, between Seller and Purchaser."
ix. Deleting the first sentence of the
definition of "Quarterly Bulk Mortgage Loan"
and replacing it with the following
sentence: "QUARTERLY BULK MORTGAGE LOAN
means (a) any Mortgage Loan purchased by
Seller through its correspondent lending
network, (b) on or prior to January 1, 2001,
a construction loan that has been converted
to a permanent Mortgage Loan, (c) on and
after January 2, 2001, a construction loan
that has been converted to a PrimeFirst(R)
Mortgage Loan (as contemplated by the 2000
Origination Agreement), or (d) any other
mortgage loan that the parties may mutually
agree to designate."
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x. Adding the following definition:
"PRIMEFIRST(R) MORTGAGE LOAN means an
adjustable rate loan offered by MLCC in
which the monthly debt repayments thereunder
for approximately the first 120 months of
the term thereof are interest only."
xi. Replacing the word "Losses" each time it
appears in clause (a) of the definition of
"Recourse Obligation" with the word
"losses."
xii. Adding the words "as amended from time to
time in accordance with the terms thereof"
to the end of the definition of "Securitized
Loan Primary Servicing Agreement."
xiii. Replacing the words "permitted successors
and assigns" in the definition of "Seller"
with the words "successors and permitted
assigns."
xiv. Deleting the first sentence of the
definition of "Subsequent Flow Mortgage
Loans" and replacing it with the following
sentence: "SUBSEQUENT FLOW MORTGAGE LOANS
means Mortgage Loans originated after March
10, 2000; provided, however, that on and
after January 2, 2001, 'Subsequent Flow
Mortgage Loans' shall mean only
PrimeFirst(R) Mortgage Loans originated
pursuant to the 2000 Origination Agreement."
xv. Deleting the definition of "Transaction
Agreements" and replacing it with the
following definition: "TRANSACTION
AGREEMENTS means this Agreement, the
Permission Agreement, the MLCC Portfolio
Servicing Agreement, the 2000 Origination
Agreement, the Loan Purchase and Sale
Agreement dated as of December 15, 2000
between Purchaser and Seller, and the Equity
Access(R) and Omega Subservicing Agreement
dated as of January 2, 2001 between
Purchaser and Seller; provided, however,
that the term 'Transaction Agreements' shall
not include any agreements which have been
terminated in accordance with their
respective terms."
xvi. Adding the following definition: "ACCOUNT
NUMBER means an account number or similar
form of access number relating to a
Borrower's Mortgage Loan or other financial
product or service with or from Seller other
than any internal identifying number
assigned by Purchaser to the Mortgage Loan."
xvii. In the definition of "Applicable
Requirements," (A) adding "collectively,
(1)" between the words "reference" and
"with" in the first line thereof, (B)
replacing the first parenthetical in clause
(b) with the following words "(including
laws, statutes, rules, regulations,
administrative interpretations and
ordinances as well as any of the foregoing
requirements applicable to Seller by virtue
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of its state licenses, qualifications and
exemptions and by virtue of its being a
subsidiary of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA)", (C)
deleting the word "and" immediately prior to
clause (f), and (D) adding the following to
the end of such definition: "and (g) any
applicable MLCC or ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA
internal policies and procedures, as revised
from time to time in accordance with the
terms hereof, and (2) the Foreign Corrupt
Practices Act of 1977, as amended."
xviii. Adding the following definition: "BORROWER
INFORMATION means any personally
identifiable information or records in any
form (written, electronic, or otherwise)
relating to a Borrower, including, but not
limited to, a Borrower's name, address,
telephone number, loan number, loan payment
history, delinquency status, insurance
carrier or payment information, tax amount
or payment information; the fact that the
Borrower has a relationship with Seller; and
any other personally identifiable
information."
xix. Adding the following definition: "LAW means
any United States federal, state or local
statute, law, ordinance, regulation, rule,
code, order, requirement, judgment, decree,
writ, injunction or rule of law (including
common law)."
xx. Adding the following definitions: "MLCC DATA
means any data, databases, reports and
records relating to financial products from
or services with MLCC, including, without
limitation, Account Numbers, Borrower
Information, and data derived therefrom."
xxi. Adding the following definitions: "MLCC
SERVICES shall mean collectively, the
Origination Services and Purchaser's
obligations under the Servicing Rights."
xxii. Adding "(including the MLCC Data with
respect thereto)" between the words "loan"
and "other" in the second line of the
definition of "Mortgage Loan."
xxiii. Adding the following definition:
"ORIGINATION SERVICES shall mean the loan
origination services to be performed by
Purchaser for and on behalf of Seller as
detailed in the Origination Agreement."
xxiv. Adding the following definition: "PERSONNEL
of a Party shall mean such Party, its
employees, subcontractors, consultants,
representatives and agents."
xxv. Adding the following definition: "SOFTWARE
means the proprietary computer software
programs, and related Software
Documentation,
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listed on Exhibits A, B and C of the
Licensing Agreement, excluding any Third
Party Software that may be embedded
therein."
xxvi. Adding the following definition: "SOFTWARE
DOCUMENTATION means, with respect to any
Software, the operating instructions and
user, installation, set-up, configuration,
training and support manuals for the
Software or any part thereof, whether
prepared by Seller or any Third Party, in
any form or medium whatsoever."
xxvii. Adding the following definition:
"TERMINATION ASSISTANCE PERIOD shall have
the meaning set forth in Section 11.26."
xxviii. Adding the following definition:
"TERMINATION ASSISTANCE SERVICES shall have
the meaning set forth in Section 11.23."
xxix. Adding the following definition: "THIRD
PARTY SOFTWARE means any software or program
and related Software Documentation
incorporated into or used separately or in
connection with the Software, that is owned
by a Third Party and licensed to Seller."
xxx. Adding the following definition: "BORROWER
means the borrower with respect to any
Mortgage Loan."
(b) Section 2.01(a). The second sentence of Section
2.01(a) of the Servicing Agreement is amended by:
i. Replacing the word "For" at the beginning of
such sentence with the words "With respect
to."
ii. Inserting the word "such" between the words
"all" and "Mortgage" in clause (i) of such
sentence.
(c) Section 3.01(a). The second sentence of Section
3.01(a) of the Servicing Agreement is amended by replacing the last
four words of such sentence ("any such Mortgage Loan") with the words
"any Mortgage Loan described in the preceding clause (i)."
(d) Section 3.02(a). The second sentence of Section
3.02(a) of the Servicing Agreement is amended by deleting the word
"Initial" in the first line thereof.
(e) Section 3.02(b). The first sentence of Section
3.02(b) of the Servicing Agreement is amended by deleting the word
"Initial" in the fourth line thereof
(f) Section 4.01(e). Section 4.01(e) of the Servicing
Agreement is amended by:
i. Deleting the last two sentences thereof in
their entirety.
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ii. The second sentence is amended by (A)
replacing the words "Prospectively, in the
event that either party to this Agreement
believes, in good faith," with the words
"The parties acknowledge," and (B) deleting
the words ", then such party shall provide
written notice to the other of the purported
change in the Applicable Requirements."
iii. The third sentence is amended by replacing
the words "Thereafter, the" with the word
"The" and replacing the words "the
purported" with the word "this."
(g) Section 4.03. Section 4.03 of the Servicing Agreement
is amended by:
i. In paragraph (c), replacing the word
"Losses" each time it appears with the word
"losses."
ii. In paragraph (d), inserting the words
"During the MLCC Interim Servicing Period,"
at the very beginning of such paragraph.
iii. In paragraph (e), inserting the words ",
during the MLCC Interim Servicing Period,"
between the words "that" and "Seller" in the
first line thereof.
(h) Section 4.06(b). Section 4.06(b) of the Servicing
Agreement is amended by inserting "(i)" before the beginning of the
first sentence thereof.
(i) Section 4.07. Section 4.07 of the Servicing Agreement
is amended by inserting the words "(or Purchaser on behalf of Seller)"
between the words "Seller" and "and" in the first line of the second
paragraph thereof.
(j) Section 4.09(a). Section 4.09(a) of the Servicing
Agreement is amended by inserting the word "such" (i) between the words
"each" and "Transfer" in the second sentence thereof and (ii) between
the words "each" and "applicable" in the third sentence thereof.
(k) Section 4.15. Section 4.15 of the Servicing Agreement
is amended by:
i. In paragraph (a), replacing the words
"except a" with "other than any" in the
first parenthetical in the first sentence
thereof.
ii. In paragraph (a), inserting the words
"(other than any Cendant Mortgage Loan)"
between the word "Loan" and "within" in the
third sentence thereof.
iii. In paragraph (a), inserting the word "such"
between the words "any" and "Mortgage" in
the fifth sentence thereof.
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iv. In paragraph (a), inserting the word "such"
between the words "each" and "original" in
the last sentence thereof.
v. In paragraph (c), inserting the words
"(other than any Cendant Mortgage Loan)"
between the words "Loan" and "Seller" in the
first sentence thereof.
vi. Adding at the end of such section the
following text as subparagraph (g): "(g) For
the avoidance of doubt, the parties hereto
acknowledge and agree (i) that any
obligations set forth in this Section 4.15
shall not apply with respect to any Mortgage
Loan which is also a Cendant Mortgage Loan
and (ii) that the payment holdback
provisions of subparagraph (f) of this
Section 4.15 shall not apply with respect to
any Cendant Mortgage Loan."
(l) New Sections 4.36 - 4.40. The Servicing Agreement is
amended by adding the following new sections, to be numbered 4.36
through 4.40:
Section 4.36 Work Policy. Personnel of either Party working on the premises of
the other Party (excluding in the case of Purchaser, premises of Seller leased
to Purchaser), and all other Personnel required by Law or government rules or
regulations, shall comply with the safety, security and other regulations of the
other Party generally applicable to its outside contractors and Personnel
particular to each work location, including, where applicable, internal security
department fingerprinting, photographing and screening processes. Personnel of a
Party, when deemed appropriate by the other Party, will be issued visitor
identification cards. Each such card will be surrendered by upon demand by the
other Party or upon termination of this Agreement or completion of the relevant
MLCC Services. Unless otherwise agreed by the Parties, Personnel of each Party
will observe the working hours, working rules, and holiday schedules of the
other Party while working on the other Party's premises (excluding in the case
of Purchaser, premises of Seller leased to Purchaser). Each Party shall advise
the other Party immediately in the event that any Personnel with security access
to any premises of the other Party (i) is no longer assigned to perform MLCC
Services, or (ii) is no longer employed by such Party.
Section 4.37 Use of Hardware and Software. In the event that Purchaser shall be
performing MLCC Services on behalf of Seller and any third party utilizing
common hardware and/or Software, Seller shall have the right, on reasonable
notice to Purchaser and at Seller's sole cost and expense, to audit such
hardware and Software to ensure segregation of MLCC Data from third party data
adequate to prevent unauthorized disclosure of MLCC Data to third parties, and
to ensure the security of MLCC Data in accordance with normal industry
practices, provided that such audit shall not disrupt Purchaser's ability to
perform the MLCC Services.
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Section 4.38. Technical Architecture Standards. On notice thereof, Purchaser
shall comply with all reasonable Seller information management technical
architecture standards related to interfacing with Seller systems, as identified
and amended by Seller from time to time.
Section 4.39. Compliance with Policies. Purchaser shall, upon notice thereof by
Seller, comply with all of Seller's commercially reasonable policies and
procedures regarding security and safeguarding of MLCC Data.
Section 4.40. Continuation of MLCC Services. Purchaser acknowledges that the
provision of MLCC Services is critical to the business and operations of Seller.
In the event of a fee dispute between Seller and Purchaser pursuant to which
either Party in good faith believes it is entitled to withhold payment of the
disputed amount or for which either Party in good faith believes payment is due,
each Party shall continue to perform its obligations under the Ancillary
Agreements, including continuing to pay undisputed amounts. Neither Party shall
not under any circumstances suspend or disrupt, or seek any injunctive or other
equitable relief for the purpose of suspending or disrupting, directly or
indirectly, provision of the services to the other Party under the Ancillary
Agreements or the normal business operations of the other Party.
(m) New Article IV-A. The Servicing Agreement is amended
by adding the following text as new Article IV-A, to be labeled "Mutual
Representations:"
"Each Party hereby represents and warrants to the other Party
as follows:
Section 4A.01. Kickbacks. No employee, agent or representative of the other
Party has been offered, shall be offered, has received, or shall receive,
directly or indirectly, from such Party, any gratuities, merchandise, cash,
services benefit, fee, commission, dividend, gift, or other inducements or
consideration of any kind in connection with this Agreement.
Section 4A.02. Government Officials. No person employed by such Party in
connection with the performance of its obligations under this Agreement is an
official of the government of any foreign country, or of any agency thereof, and
no part of any moneys or consideration paid to such Party hereunder shall accrue
for the benefit of any such official.
Section 4A.03. No Relation. No individual who will receive specific compensation
from such Party as a result of the execution of this Agreement is related to any
public official or official of any issuer of municipal securities. For purposes
of this Section, the term "official of an issuer of municipal securities" means
any person who is an incumbent, candidate or successful candidate (a) for
elective office of any issuer which office is directly or indirectly responsible
for, or can influence the outcome of, the hiring of a broker, dealer or
municipal securities dealer for municipal securities business by such issuer, or
(b) for any elective office of a state or of any political subdivision, which
office has authority to appoint any official(s) of such issuer. The term
"related" applies when a person is related by blood or marriage."
(n) Section 5.09(d)(iii). Section 5.09(d)(iii) of the
Servicing Agreement is amended by inserting the words "(other than
Purchaser)" between the words "Originator" and "or" in the second
sentence thereof.
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(o) Section 5.09(h). Section 5.09(h) of the Servicing
Agreement is amended by:
i. Inserting the words "(if not the Purchaser)"
between the words "Originator" and "and" in
the first sentence thereof.
ii. Inserting the words "(other than Purchaser)"
between the words "Originator" and "was" in
the last sentence thereof.
(p) Section 5.09(n). Section 5.09(n) of the Servicing
Agreement is amended by inserting the words "(other than Purchaser)"
between the words "Originator" and "and/or" in the first sentence
thereof.
(q) Section 5.09(t). Section 5.09(t) of the Servicing
Agreement is amended by deleting the words "None of the Mortgage Loans
are subject to bi-weekly payment plans, and the" in second to last
sentence of such section and inserting the word "The" in lieu thereof.
(r) Section 5.09(y). Section 5.09(y) of the Servicing
agreement is amended by inserting the words "(other than Purchaser)"
between the words "Originator" and "or" in the fourth line of the first
sentence thereof.
(s) Section 5.09(gg). Section 5.09(gg) of the Servicing
Agreement is amended by inserting the words "which is not a Cendant
Mortgage Loan" between the words "Loan" and "Seller" in the first line
thereof.
(t) Section 5.17. Section 5.17 of the Servicing Agreement
is amended by inserting the words "(unless the Purchaser was the
Originator)" between the words "Originators" and "or" in the third line
thereof.
(u) Section 5.18. Section 5.18 of the Servicing Agreement
is amended by deleting the text of such section and replacing it with
the following: "Notwithstanding anything to the contrary contained in
this Agreement, no representation or warranty is made by the Seller at
any time with respect to any Cendant Mortgage Loan to the extent such
representation or warranty relates to any act or omission of Purchaser
in connection with the origination of such Cendant Mortgage Loan."
(v) [Reserved.]
(w) Section 8.06. Section 8.06 of the Servicing Agreement
is amended by inserting the following after the last word in such
section: "and except as set forth in Section 5.18."
(x) Section 9A.01. Section 9A.01(d) of the Servicing
Agreement is amended by (i) deleting the words "grounds for Seller, in
its sole discretion, to terminate (i) this Agreement pursuant to
Section 11.23(vii) and (ii) any other Transaction Agreement(s)" and
inserting the words "a Service Deficiency for purposes of Section
11.25" in lieu thereof and (ii) deleting the last sentence of paragraph
(f) in its entirety.
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(y) Section 10.01(f). Section 10.01(f) of the Servicing
Agreement is amended by adding the words "(other than with respect to
any Cendant Mortgage Loan)" between the words "Note" and "to."
(z) Section 10.02(a)(ii). Section 10.02(a)(ii) of the
Servicing Agreement is amended by inserting the words "(other than
Purchaser)" between the words "Originator" and "or" in the third line
of the first sentence thereof.
(aa) Section 11.02(a). Section 11.02(a) of the Servicing
Agreement is amended by adding the words "(including outside
accountants)" between the words "accountants" and "and" in clause (ii)
of the first sentence thereof.
(bb) Section 11.05. Section 11.05 of the Servicing
Agreement is amended by:
i. Deleting the first sentence thereof and
replacing it with the following: "Without
Seller's prior written consent, which
consent may be withheld by Seller in its
sole discretion, neither Purchaser nor any
Affiliate of Purchaser shall solicit any
Mortgagor, or cause any Mortgagor to be
solicited, for subordinate financing of any
Mortgage Loan (other than subordinate
financing arranged under the Equity Access
program) or any product or service
whatsoever, including, without limitation,
any investment or financial services or
products, insurance products or services and
brokerage account services."
ii. Inserting the word "respective" between the
words "their" and "Affiliates" in each of
clauses (i) and (ii) of the last sentence of
such section.
(cc) Section 11.15. Section 11.15 of the Servicing
Agreement is amended by deleting the text in such section and inserting
the following: "This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to
contracts executed in and to be performed in that State. All actions
and proceedings arising out of or relating to this Agreement shall be
heard and determined exclusively in any New York State court or any
federal court sitting in the County of New York. The parties hereto
expressly consent and agree to the exclusive jurisdiction of any such
court or venue therein."
(dd) Section 11.22. Section 11.22 of the Servicing
Agreement is amended by deleting the text contained in such section and
inserting the following: "This Agreement shall automatically expire and
terminate upon the earlier of (i) December 31, 2010 and (ii) the date
upon which the 2000 Origination Agreement is terminated in accordance
with the terms thereof. If the 2000 Origination Agreement shall have
been extended for an extension term, this Agreement shall be
automatically extended for the same extension term without any action
by the parties hereto."
(ee) Section 11.23. Section 11.23 of the Servicing
Agreement is amended by:
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i. Deleting the text contained in each of
clauses (ii), (iv), (v) and (vi) in the
first sentence of such section, and in each
such clause, inserting the words
"intentionally omitted" in lieu thereof.
ii. Adding the following text at the end
thereof: "Without limitation of the
foregoing, if (A) a PHH Competitor Change of
Control (as defined in the 2000 Origination
Agreement) shall have occurred, then at any
time after Seller shall have received notice
of such PHH Competitor Change of Control,
Seller may, by giving written notice thereof
to Purchaser, terminate this Agreement as of
a future date specified in such notice of
termination; or (B) a PHH Change of Control
(as defined in the 2000 Origination
Agreement) (other than a PHH Competitor
Change of Control) shall have occurred, then
at any time within 30 days after the two
year anniversary of such PHH Change of
Control, Seller may, by giving written
notice thereof to Purchaser, terminate this
Agreement as of a future date specified in
such notice of termination."
(ff) Section 11.24. Section 11.24 of the Servicing
Agreement is amended by deleting the text contained in such section in
its entirety and inserting the following in lieu thereof: "In the event
of a default (that remains uncured after the expiration of the
applicable cure period, if any) under any of (i) the Origination
Assistance Agreement, (ii) the Loan Purchase and Sale Agreement, (iii)
the Trademark Use Agreement, and/or (iv) the MLCC Portfolio Servicing
Agreement, the non-defaulting party may, at its option, terminate this
Agreement."
(gg) Section 11.25. Section 11.25 of the Servicing
Agreement is amended by:
i. Deleting the words "terminate this Agreement
and any or all other Transaction Agreements"
at the end of paragraph (b) and inserting
"require Purchaser to solicit bids for a
subservicer as provided in paragraph (d)
below" in lieu thereof.
ii. Deleting the words "terminate this Agreement
as provided for in Section 11.25(b)" in the
first line of paragraph (c) and inserting
"solicit bids for a subservicer as provided
in paragraph (d) below" and deleting the
words "and termination" in the last sentence
of such paragraph."
iii. Adding the following text as new paragraph
(d):
" (d) In the event that Seller shall have the right to require Purchaser to
solicit bids for a Subservicer as provided in (b) above, then Purchaser, upon
Seller's written demand, shall proceed as follows:
(i) Purchaser shall prepare a request for proposal
("RFP") for a Subservicer to assume Purchaser's obligations relating to the
Servicing Rights. Purchaser shall
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submit such RFP to Seller for review within thirty (30) days of Seller's written
demand that Purchaser solicit bids for a Subservicer. Purchaser shall
incorporate Seller's reasonably requested revisions to such RFP within ten (10)
days of Purchaser's receipt of Seller's requested revisions.
(ii) Purchaser shall submit the final RFP to no less
than three (3) residential Mortgage Loan servicers reasonably chosen by Seller.
(iii) Purchaser shall select the bid requested by
Seller.
(iv) Purchaser shall pay the costs of the entity
chosen by Seller as the Subservicer to assume Purchaser's obligations relating
to the Servicing Rights. If, however, the bid selected by Seller is the highest
bid and such bid exceeds the second highest bid by 10%, then Seller shall be
responsible for the difference between the selected bid and 110% of the second
highest bid."
iv. Relabeling current paragraph (d) as
paragraph (e) and deleting the words "and
the other Transaction Agreements" in such
paragraph.
(hh) New Section 11.27. The Servicing Agreement is hereby
amended by adding the following new Section 11.27:
"Section 11.27 Termination Assistance. (a) Upon expiration or termination of all
or part of the MLCC Services for any reason, Purchaser shall for a period of one
(1) year (the "Termination Assistance Period"), upon Seller's request and at
Seller's expense, continue to provide the MLCC Services that were provided prior
thereto ("Termination Assistance Services"). In providing Termination Assistance
Services, Purchaser shall provide such reasonable cooperation and technical
assistance to Seller, or to a third-party service provider designated by Seller,
as required to facilitate the transfer of the affected MLCC Services to Seller
or such third-party service provider. The rights of Seller under this Section
shall be without prejudice to the Parties' rights to pursue legal remedies for
breach of this Agreement, either for breaches prior to termination or during the
period this Agreement is continued in force post-termination. Termination
Assistance Services shall be provided for the same fees as prior to termination,
and Purchaser shall use commercially reasonable efforts to perform the MLCC
Services at the same service levels as prior to termination. MLCC hereby agrees
to continue to provide the services or meet its obligations contemplated to be
provided by it under this Agreement during the Termination Assistance Period in
order to assist Purchaser in complying with this Section 11.26(a).
(b) If and to the extent requested by Seller, whether prior to, upon, or
following any termination of this Agreement, Purchaser shall reasonably assist
Seller in developing a plan which shall specify the tasks to be performed by the
Parties in connection with the Termination Assistance Services and the schedule
for the performance of such tasks. The transition plan shall include
descriptions of the MLCC Services, service levels, fees, documentation and
access requirements that will promote an orderly transition of the MLCC
Services.
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(c) For a period of six (6) months following the Termination Assistance
Period, Purchaser shall: (i) answer all reasonable and pertinent verbal or
written questions from Seller regarding the MLCC Services on an "as needed"
basis; and (ii) deliver to Seller any remaining Seller-owned reports and
documentation still in Purchaser's possession."
(ii) The Servicing Agreement is amended by replacing,
throughout the entire agreement, any reference to "the Origination
Agreement" or any other similar reference to "Origination Agreement"
that connotes the singular form of such definition, with "any
Origination Agreement" or "the Origination Agreements" or "the
applicable Origination Agreement" or any other similar reference that
connotes the plural form of such definition, as the context may
require.
SECTION 2. Amendments to the Portfolio Agreement. The
Portfolio Agreement is hereby amended as follows:
(a) Section 1.01. Section 1.01 of the Portfolio Agreement
is amended by:
i. Deleting the definition of "Additional
Collateral" and replacing it with the
following: "ADDITIONAL COLLATERAL means with
respect to any Mortgage 100 Loan or and
Parent Power Mortgage Loan, the marketable
securities subject to a security interest
pursuant to the related Mortgage 100 Pledge
Agreement or the Parent Power Guaranty and
Security Agreement for Securities Account."
ii. Deleting the definition of "Cendant Mortgage
Loan" and replacing it with the following:
"CENDANT MORTGAGE LOAN means a Mortgage Loan
originated by Purchaser pursuant to either
(i) the 1997 Origination Agreement or (ii)
the 2000 Origination Agreement."
iii. In the definition of "Mortgage Loan,"
inserting the words "(or any Person on
behalf of Owner)" between the words "Owner"
and "originates" in the third line thereof.
iv. In the definition of "Mortgage Loan
Schedule," inserting the words "(or any
Person on behalf of Owner)" between the
words "Owner" and "originates" in the fourth
line thereof.
v. Deleting the definition of "Origination
Agreement" and replacing it with the
following: "ORIGINATION AGREEMENTS means the
1997 Origination Agreement and the 2000
Origination Agreement."
vi. Adding the following definition: "1997
ORIGINATION AGREEMENT means the Mortgage
Loan Purchase and Services Agreement dated
as of September 24, 1997 between Seller and
PHH Mortgage Services Corporation, as the
same may be amended from time to time in
accordance with the terms thereof."
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vii. Adding the following definition: "2000
ORIGINATION AGREEMENT means the Origination
Assistance Agreement dated as of December
15, 2000 between the Seller and the
Purchaser, as the same may be amended from
time to time in accordance with the terms
thereof."
viii. Deleting the definition of "Permission
Agreement" and replacing it with the
following definition: "PERMISSION AGREEMENT
means (i) from January 28, 2000 through
January 1, 2001, the Permission Agreement
dated as of January 28, 2000 between Seller
and Purchaser and (ii) on and after January
2, 2001, the Trademark Use Agreement."
ix. Adding the following definition: "TRADEMARK
USE AGREEMENT means the Trademark Use
Agreement dated as of December 15, 2000
between Seller and Purchaser."
x. Deleting the definition of "Purchase and
Sale Agreement" and replacing it with the
following definition: "PURCHASE AND SALE
AGREEMENTS means the First Purchase and Sale
Agreement and the Second Purchase and Sale
Agreement."
xi. Adding the following definition: "FIRST
PURCHASE AND SALE AGREEMENT means the
Servicing Rights Purchase and Sale Agreement
dated as of January 28, 2000, between the
Owner, as seller, and the Company, as
purchaser."
xii. Adding the following definition: "SECOND
PURCHASE AND SALE AGREEMENT means the
Servicing Rights Purchase and Sale Agreement
dated as of December 15, 2000, between the
Owner, as seller, and the Company, as
purchaser."
xiii. Adding the words "as amended from time to
time in accordance with the terms thereof"
to the end of the definition of "SECURITIZED
LOAN PRIMARY SERVICING AGREEMENT."
xiv. Adding the words "as amended from time to
time in accordance with the terms thereof"
to the end of the definition of
"SUBSERVICING AGREEMENT."
xv. Deleting the definition of "Transaction
Agreements" and replacing it with the
following definition: "TRANSACTION
AGREEMENTS means this Agreement, the
Permission Agreement, the First Purchase and
Sale Agreement, the 2000 Origination
Agreement, the Loan Purchase and Sale
Agreement dated as of December 15, 2000
between Purchaser and Seller, and the Equity
Access(R) and Omega Subservicing Agreement
dated as of January 2, 2001 between
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Purchaser and Seller; provided, however,
that the term "Transaction Agreements" shall
not include any agreements which have been
terminated in accordance with their
respective terms."
xvi. In the definition of "Applicable
Requirements," (A) adding "collectively,
(1)" between the words "reference" and
"with" in the first line thereof, (B)
replacing the first parenthetical in clause
(b) with the following words "(including
laws, statutes, rules, regulations,
administrative interpretations and
ordinances as well as any of the foregoing
requirements applicable to Company by virtue
of its state licenses, qualifications and
exemptions and by virtue of its being a
subsidiary of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA)", (C)
deleting the word "and" immediately prior to
clause (f), and (D) adding the following to
the end of such definition: "and (g) any
applicable MLCC or ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA
internal policies and procedures, as revised
from time to time in accordance with the
terms hereof, and (2) the Foreign Corrupt
Practices Act of 1977, as amended."
(b) Section 2.01(i). Section 2.01(i) of the Portfolio
Agreement is amended by adding the following sentence at the end of
such paragraph: "Notwithstanding the foregoing, the Company
acknowledges and agrees that the Owner maintains agreements with
document custodians selected by it from time to time, pursuant to which
such custodians maintain Mortgage Loan files on behalf of the Owner.
The Company agrees to cooperate with such custodians and request from
such custodians the documents and Mortgage Files required by the
Company which are maintained by such custodians (with a copy of such
request sent to the Owner).
(c) Section 2.04(a). Section 2.04(a) of the Portfolio
Agreement is amended by adding the words "(including outside
accountants)" between the words "accountants" and "supervisory" in the
first line thereof.
(d) [Reserved.]
(e) Section 5.02(a)(i). Section 5.02(a)(i) of the
Portfolio Agreement is amended by inserting the words "any custodian
that maintains documents or Mortgage Files on behalf of the Owner,"
between the words "Owner," and "any" in the first line thereof.
(f) Section 5.02(a)(ii). Section 5.02(a)(ii) of the
Portfolio Agreement is amended by inserting after the end of the first
sentence the following words: "The Company shall, as the Owner may
request, either (A) enter into such agreements with the Owner, in which
case the Owner's rights and obligations thereunder shall be freely
assignable and delegable to the Subsequent Purchaser without any
further action or consent by the Company, or (B) enter into such
agreement directly with the Subsequent Purchaser."
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(g) Section 5.02(a)(iii). Section 5.02(a)(iii) of the
Portfolio Agreement is amended by inserting the words "for the benefit
of the Subsequent Purchaser" after the words "Purchase and Sale
Agreement" in the second line thereof.
(h) Section 5.02(a). Section 5.02(a) of the Portfolio
Agreement is amended by replacing the period at the end of subclause
(vii) with a semicolon and adding the word "and" after such inserted
semicolon.
(i) Section 8.01. Section 8.01 of the Portfolio Agreement
is amended by:
i. Deleting the first sentence thereof and
replacing it with the following: "Without
Owner's prior written consent, which consent
may be withheld by Owner in its sole
discretion, neither Company nor any
Affiliate of Company shall solicit any
Mortgagor, or cause any Mortgagor to be
solicited, for subordinate financing of any
Mortgage Loan (other than subordinate
financing arranged under the Equity Access
program) or any product or service
whatsoever, including, without limitation,
any investment or financial services or
products, insurance products or services and
brokerage account services."
ii. Inserting the word "respective" between the
words "their" and "Affiliates" in each of
clauses (i) and (ii) of the last sentence of
such section.
(j) Section 10.01. Section 10.01 of the Portfolio
Agreement is amended by deleting the text contained in clause (b) at
the end of the first paragraph of such section and inserting in lieu
thereof the words "as to the First Purchase and Sale Agreement, such
agreement may be terminated as to the Subsequent Flow Mortgage Loans
and the Quarterly Bulk Mortgage Loans, as more particularly defined
therein."
(k) Section 10.02(b). Section 10.02(b) of the Portfolio
Agreement is amended by deleting the words "any or all other
Transaction Agreements" at the end of such section, and inserting the
following in lieu thereof: "the First Purchase and Sale Agreement as to
the Subsequent Flow Mortgage Loans and the Quarterly Bulk Mortgage
Loans, as more particularly defined therein."
(l) Section 10.02(d). Section 10.02(d) of the Portfolio
Agreement is amended by deleting the words "and the other Transaction
Agreements."
(m) Section 15.02(a). Section 15.02(a) of the Portfolio
Agreement is amended by adding the words "(including outside
accountants)" between the words "accountants" and "and" in the second
line thereof.
(n) Section 15.13. Section 15.13 of the Portfolio
Agreement is amended by deleting the text of such section in its
entirety and replacing it with the following: "This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
New York applicable to contracts executed in and to be performed in
that State. All
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actions and proceedings arising out of or relating to this Agreement
shall be heard and determined exclusively in any New York State court
or any federal court sitting in the County of New York. The parties
hereto expressly consent and agree to the exclusive jurisdiction of any
such court or venue therein."
(o) The Portfolio Agreement is amended by replacing,
throughout the entire agreement, any reference to "the Origination
Agreement" or any other similar reference to "Origination Agreement"
that connotes the singular form of such definition, with "any
Origination Agreement" or "the Origination Agreements" or "the
applicable Origination Agreement" or any other similar reference that
connotes the plural form of such definition, as the context may
require.
(p) The Portfolio Agreement is amended by replacing,
throughout the entire agreement (except as set forth in Section 2(j)
above), any reference to "the Purchase and Sale Agreement" or any other
similar reference to "Purchase and Sale Agreement" that connotes the
singular form of such definition, with "any Purchase and Sale
Agreement" or "the Purchase and Sale Agreements" or "the applicable
Purchase and Sale Agreement" or any other similar reference that
connotes the plural form of such definition, as the context may
require.
SECTION 3. Amendments to the Sub-Servicing Agreement. The
Sub-Servicing Agreement is hereby amended as follows:
(a) Section 7.01. Section 7.01 of the Sub-Servicing
Agreement is amended by:
i. Deleting the first sentence thereof and
replacing it with the following: "Without
Servicer's prior written consent, which
consent may be withheld by Servicer in its
sole discretion, neither Subservicer nor any
Affiliate of Subservicer shall solicit any
Mortgagor, or cause any Mortgagor to be
solicited, for subordinate financing of any
Mortgage Loan (other than subordinate
financing arranged under the Equity Access
program) or any product or service
whatsoever, including, without limitation,
any investment or financial services or
products, insurance products or services and
brokerage account services."
ii. Inserting the word "respective" between the
words "their" and "Affiliates" in each of
clauses (i) and (ii) of the last sentence of
such section.
(b) Section 14.01. Section 14.01 of the Sub-Servicing
Agreement is amended by (i) deleting the text "any other Transaction
Agreement. (As" contained in the first sentence of such section and
inserting in lieu thereof the word "as" and (ii) deleting the ")" at
the end of the first sentence, as such first sentence has been amended
by clause (i) of this Section 3(b).
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(c) Section 14.02(b). Section 14.02(b) of the
Sub-Servicing Agreement is amended by deleting the words "any or all
other Transaction Agreements" at the end of such section, and inserting
the following in lieu thereof: "the First Purchase and Sale Agreement
as to the Subsequent Flow Mortgage Loans and the Quarterly Bulk
Mortgage Loans, as more particularly defined therein."
(d) Section 14.02(d). Section 14.02(d) of the
Sub-Servicing Agreement is amended by deleting the words "and the other
Transaction Agreements."
(e) Section 17.14. Section 17.14 of the Sub-Servicing
Agreement is amended by deleting the text of such section in its
entirety and replacing it with the following: "This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
New York applicable to contracts executed in and to be performed in
that State. All actions and proceedings arising out of or relating to
this Agreement shall be heard and determined exclusively in any New
York State court or any federal court sitting in the County of New
York. The parties hereto expressly consent and agree to the exclusive
jurisdiction of any such court or venue therein."
(f) Section 1.01. Section 1.01 of the Sub-Servicing
Agreement is amended by making the following changes in the definition
of "Applicable Requirements": (A) adding "collectively, (1)" between
the words "reference" and "with" in the first line thereof, (B)
replacing the first parenthetical in clause (b) with the following
words "(including laws, statutes, rules, regulations, administrative
interpretations and ordinances as well as any of the foregoing
requirements applicable to Servicer by virtue of its state licenses,
qualifications and exemptions and by virtue of its being a subsidiary
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA)", (C) deleting the word "and" immediately
prior to clause (f), and (D) adding the following to the end of such
definition: "and (g) any applicable MLCC or ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA
internal policies and procedures, as revised from time to time in
accordance with the terms hereof, and (2) the Foreign Corrupt Practices
Act of 1977, as amended."
SECTION 4. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York applicable
to contracts executed in and to be performed in that State. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined exclusively in any New York State court or any federal court sitting
in the County of New York. The parties hereto expressly consent and agree to the
exclusive jurisdiction of any such court or venue therein.
SECTION 5. Waiver of Jury Trial. Each of the parties hereto
hereby waives to the fullest extent permitted by applicable law any right it may
have to a trial by jury with respect to any litigation directly or indirectly
arising out of, under or in connection with this Agreement or any Terminated
Agreement.
SECTION 6. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
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SECTION 7. Headings. The descriptive headings contained in
this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
SECTION 8. Miscellaneous. This Agreement may be modified or
amended only be a writing signed by the parties hereto. This Agreement may be
executed (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
SECTION 9. Fees and Expenses. All costs and expenses incurred
in connection with this Agreement, the termination of the Terminated Agreements
or the transactions contemplated hereby and thereby shall be paid by the party
incurring such expenses.
SECTION 10. Ratification. Except as amended hereby, the
Servicing Agreement and the Portfolio Agreement shall remain unmodified and in
full force and effect, and are hereby ratified and confirmed.
SECTION 11. Benefit and Binding Effect. The terms of this
Agreement shall be effective as of the date hereof, upon signature of
counterparts by all parties, and shall be binding upon and inure to the benefit
of MLCC and Cendant and their respective successors and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT CORPORATION
By: _____________________________________
Name:
Title:
CENDANT MORTGAGE CORPORATION
By: _____________________________________
Name:
Title:
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