Exhibit 99.10
ADDITIONAL COLLATERAL SERVICING AGREEMENT
This ADDITIONAL COLLATERAL SERVICING AGREEMENT (this "Agreement"),
dated as of March 29, 2001, is made among Cendant Mortgage Corporation (the
"Servicer") and ▇▇▇▇▇▇ Brothers Bank, FSB (the "Purchase").
W I T N E S S E T H:
WHEREAS, Purchaser is the Purchaser pursuant to the terms and
provisions of that certain Mortgage Loan Flow Purchase, Sale and Servicing
Agreement, dated March 29, 2001, between the Servicer and the Purchaser (the
"Purchase and Servicing Agreement"); and
WHEREAS, Purchaser will purchase under the Purchase and Servicing
Agreement from time to time certain Mortgage Loans that were originated by MLCC
and secured by collateral in addition to the real property securing such
Mortgage Loans (any such loans subject to the Purchase and Servicing Agreement
and identified on the Mortgage Loan Schedule from time to time, the "Additional
Collateral Mortgage Loans"); and
WHEREAS, that with respect to each Additional Collateral Mortgage Loan,
Servicer is a party to (or assignee of ) either: (a) a Mortgage 100(SM) Pledge
Agreement; or (b) a Parent Power(R) Agreement; and
WHEREAS, in connection with the Mortgage 100(SM) Loans and those Parent
Power(R) Mortgage Loans supported by a Parent Power(R) Guaranty and Security
Agreement for Securities Account (collectively, the "Pledge Agreements"), the
Additional Collateral Mortgage Loans are secured by real property of the
applicable borrower and by the pledges of certain securities in a Securities
Account of the borrower or parent of the borrower (the "Securities Accounts");
and
WHEREAS, in connection with the Parent Power(R) Loans supported by a
Parent Power(R) Guaranty Agreement for Real Estate, the Additional Collateral
Mortgage Loans are secured by the real property of the applicable borrower and
the real property of the applicable guarantor of such loan; and
WHEREAS, Servicer and MLCC have entered into a Loan Purchase and Sale
Agreement, under which MLCC will administer and service the Additional
Collateral with respect to the Additional Collateral Mortgage Loans; and
WHEREAS, Purchaser has requested Servicer, and Servicer has agreed, to
administer and service the Additional Collateral, provided that the Servicer
shall have no obligation to do so unless it shall have assumed the obligations
of MLCC as successor servicer under the Loan Purchase and Sale Agreement,
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
-2-
Section 1. Definitions. For all purposes of this Agreement, except as
otherwise expressly provided herein or unless the context otherwise requires,
all capitalized terms shall have the meanings set forth below:
"Additional Collateral": (i) With respect to any Mortgage 100(SM) Loan,
the Securities Account and the financial assets held therein subject to a
security interest pursuant to the related Mortgage 100(SM) Pledge Agreement, or
(ii) with respect to any Parent Power(R) Mortgage Loan, the related Parent
Power(R) Agreement and collateral pledged pursuant thereto.
"Additional Collateral Agreements": Each Mortgage 100(SM) Pledge
Agreement, Parent Power(R) Guaranty and Securities Agreement for Securities
Account, Parent Power(R) Guaranty Agreement for Real Estate and the Control
Agreement, for each Additional Collateral Mortgage Loan.
"Additional Collateral Mortgage Loan": Each Mortgage Loan as to which
Additional Collateral was required to be provided at the closing thereof, which
is subject to the terms of this Agreement from time to time.
"Additional Collateral Service": Either (i) MLCC or (ii) Cendant, if
MLCC's obligations to administer the Additional Collateral as provided in the
Loan Purchase and Sale Exhibit have been terminated with respect to the
Additional Collateral Mortgage Loans sold under the Purchase and Servicing
Agreement.
"Agreement": This Additional Collateral Servicing Agreement.
"Appraised Value": With respect to any Mortgage Loan, the value of the
related Mortgaged Property based upon the lesser of(i) the appraisal made for
Servicer at the time of origination of the Mortgage Loan, and (ii) if
applicable, the sales price of the Mortgaged Property at such time of
origination.
"Control Agreement": With respect to each Mortgage 100(SM) Loan, the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Pledged Collateral Account Control Agreement between the guarantor
or mortgagor, as applicable, the Servicer and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, pursuant to which the guarantor or mortgagor, as applicable,
has granted a security interest in a Securities Account.
"Equity Access(R) Agreement": The revolving line of credit agreement
entered into between the Servicer and the guarantor under any Parent Power(R)
Guaranty Agreement for Real Estate pursuant to which a line of credit may be
drawn upon by the Additional Collateral Servicer to fund the payment by such
guarantor of a loss specified in such Parent Power(R) Guaranty Agreement for
Real Estate.
"Equity Access(R) Mortgage": The mortgage, deed of trust or other
security instrument (including all amendments and supplements thereto) made by
the guarantor under any Parent Power(R) Guaranty Agreement for Real Estate to
secure its obligations thereunder and under the related Equity Access(R)
Agreement.
-3-
"Loan Purchase and Sale Exhibit": Certain provisions, attached to this
Agreement as Exhibit A, from the Loan Purchase and Sale Agreement, dated as of
December 15, 2000, between MLCC and Cendant, and exhibits thereto, pursuant to
which MLCC shall be responsible for servicing and administering the Additional
Collateral.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, the ratio on
the date of origination of the outstanding principal balance of such Mortgage
Loan to the Appraised Value of the related Mortgaged Property.
"MLCC": ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Corporation and its successors in
interest.
"Mortgage 100(SM) Loan": A Mortgage Loan secured by Additional
Collateral in the form of a security interest in the Securities Account and the
financial assets held therein and having a value, as of the date of origination
of such Mortgage Loan, of at least equal to the related Original Additional
Collateral Requirement.
"Mortgage 100(SM) Pledge Agreement": With respect to each Mortgage
100(SM) Loan, the Pledge Agreement for Securities Account between the related
mortgagor and the Additional Collateral Servicer pursuant to which such
mortgagor granted a security interest in the related securities and other
financial assets held therein.
"Mortgage Loan": An individual mortgage loan and all rights with
respect thereto, including but not limited to all documents included in the
Mortgage File, evidenced by a mortgage note and secured by a mortgage
encumbering the Mortgaged Property.
"Mortgaged Property": The underlying real property securing repayment
of a Mortgage Note, consisting of a fee simple or leasehold interest in a single
parcel of real property improved by a residential dwelling.
"Original Additional Collateral Requirement": With respect to any
Additional Collateral Mortgage Loan, an amount equal to the Additional
Collateral required at the time of the origination of such Additional Collateral
Mortgage Loan. Even though for other purposes the Original Additional Collateral
Requirement may actually exceed thirty percent (30%) of the original principal
balance of an Additional Collateral Mortgage Loan, solely for purposes of the
Required Surety Payment, the Original Additional Collateral Requirement for an
Additional Collateral Mortgage Loan will be deemed not to exceed thirty percent
(30%) of its original principal balance.
"Parent Power(R) Agreement:" With respect to each Parent Power(R)
Mortgage Loan, a Parent Power(R) Guaranty and Security Agreement for Securities
Account or a Parent Power(R) Guaranty Agreement for Real Estate.
"Parent Power(R) Guaranty Agreement for Real Estate:" With respect to a
Parent Power(R) Mortgage Loan, an agreement between the Additional Collateral
Servicer and a guarantor on behalf of the mortgagor under such Parent Power(R)
Mortgage Loan pursuant to which such guarantor guarantees the payment of certain
losses under such Parent Power(R) Mortgage Loan, authorizes the Additional
Collateral Servicer to draw on the related Equity Access Agreement to fund such
guaranty and has secured such
-4-
Equity Access Agreement with an Equity Access Mortgage secured by a lien on
residential real estate of the guarantor. The required amount of the collateral
supporting such guaranty is at least equal to the Original Additional Collateral
Requirement for such Parent Power(R) Mortgage Loan. For purposes of this
definition, the Parent Power(R) Guaranty Agreement For Real Estate shall not
include the rights of the mortgagee under the Equity Access(R) Agreement
referred to therein and under the Equity Access(R) Mortgage, which rights have
been retained by the Additional Collateral Servicer.
"Parent Power(R) Guaranty and Security Agreement for Securities
Account": With respect to a Parent Power(R) Mortgage Loan, an agreement between
the Additional Collateral Servicer and a guarantor on behalf of the mortgagor
under such Parent Power(R) Mortgage Loan pursuant to which such guarantor
guarantees the payment of certain losses under such Parent Power(R) Mortgage
Loan and has granted a security interest to the Additional Collateral Servicer
in certain marketable securities to collateralize such guaranty. The required
amount of such collateral is at least equal to the Original Additional
Collateral Requirement for such Parent Power(R) Mortgage Loan.
"Parent Power(R) Mortgage Loan": A Mortgage Loan having at the time of
origination a Loan-to-Value Ratio generally in excess of the Servicer's maximum
acceptable Loan-to-Value Ratio for such Mortgage Loan as set forth in the
Underwriting Guide, which Mortgage Loan is supported by a Parent Power(R)
Agreement.
"Pledge Agreements": Any Mortgage IOOSM Pledge Agreement or Parent
Power(R) Guaranty and Security Agreement for Securities Account related to an
Additional Collateral Mortgage Loan.
"Required Surety Payment": With respect to any defaulted Additional
Collateral Mortgage Loan for which a claim is payable under the Surety Bond
under the procedures referred to herein, the lesser of (i) the principal portion
of the realized loss with respect to such Mortgage Loan and (ii) the excess, if
any, of(a) the amount of Additional Collateral required at origination with
respect to such Mortgage Loan (but not more than 30% of the original principal
balance of such Mortgage Loan) over (b) the net proceeds realized by the
Additional Collateral Servicer from the related Additional Collateral.
"Securities Account": With respect to any Additional Collateral
Mortgage Loans, the account, together with the financial assets held therein,
that are the subject of the related Mortgage 100(SM) Pledge Agreement.
"Surety Bond": Either (a) the limited purpose Surety Bond (Policy No.
AB0039BE), dated February 28, 1996 in respect to Mortgage Loans originated by
MLCC, issued by Anibac Assurance Corporation (f/k/a Ambac Indemnity Corporation)
for the benefit of certain beneficiaries, but only to the extent that such
Surety Bond covers any Additional Collateral Mortgage Loans, or (b) if so
specified by the Servicer with respect to any Additional Collateral Mortgage
Loans at the time of purchase thereof under the Purchase and Servicing
Agreement, any other surety bond specified by the Servicer.
-5-
"Surety Bond Issueer": Either (a) Ambac Assurance Corporation, (f/k/a
Ambac Indemnity Corporation) or any successor thereto, or (b) if so specified by
the Servicer with respect to any Additional Collateral Mortgage Loans at the
time of purchase thereof under the Purchase and Servicing Agreement, any other
surety bond issuer specified by the Servicer.
"Underwriting Guide": The underwriting guide of the Servicer, as
revised from time to time.
Except as otherwise expressly provided herein or unless the context
otherwise requires, all capitalized terms used herein other than those defined
in this Agreement shall have the meanings set forth in the Purchase and
Servicing Agreement.
Section 2. Representations.
(a) Servicer hereby represents and warrants to Purchaser that prior to
its assignment to Purchaser, Servicer had a first priority
perfected security interest in each Securities Account, or, if
necessary to perfect a first priority security interest in each
asset contained in such Securities Account, a first priority
perfected security interest in each such asset contained in such
Securities Account and following Servicer's assignment of the
Pledge Agreements and related security interest, Purchaser has a
first priority perfected security interest in each Securities
Account, or, if necessary to perfect a first priority security
interest in each asset contained in such Securities Account, a
perfected first priority security interest in each such asset
contained in such Securities Account.
(b) Servicer represents and warrants to Purchaser that the Additional
Collateral Mortgage Loans are insured under the terms and
provisions of the Surety Bond subject to the limitations set forth
therein. Servicer covenants that within 2 Business Days after the
Funding Date for any purchase of Additional Collateral Mortgage
Loans, Servicer will deliver to the Surety Bond Issuer an
"Assignment and Notice of Transfer" in the form of Attachment 2 to
the Surety Bond, or any other similar instrument required to be
delivered under the Surety Bond, executed by Servicer, Purchaser
and MLCC, and that all other requirements for transferring coverage
under the Surety Bond in respect of such Additional Collateral
Mortgage Loans to the Purchaser shall be complied with. Servicer
shall indemnify Purchaser and to hold it harmless against any and
all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that are related to or arise
from the non-payment of Required Surety Payments with respect to
the Additional Collateral Loans purchased by Purchaser from Cendant
on the date hereof. The indemnification obligation provided in this
paragraph shall expire upon receipt by the Surety Bond Issuer of an
Assignment and Notice of Transfer referred to in this paragraph,
signed by both Servicer and Purchaser.
-6-
(c) Servicer represents and warrants that the assignment of rights to
Purchaser under the Surety Bond, as described herein, will not
result in Purchaser assuming any obligations or liabilities of
Servicer with respect thereto.
(d) With respect to each Additional Collateral Mortgage Loan sold under
the Purchase and Servicing Agreement, the following representations
and warranties made under Section 3.03 thereof are hereby modified
as follows:
(6) Original Terms Unmodified. The terms of the Mortgage Note, the
Mortgage and any Additional Collateral Agreements related to
such Mortgage Loan have not been impaired, waived, altered or
modified in any material respect, except as specifically set
forth in the related Mortgage Loan Schedule;
(7) No Defenses. The Mortgage Note, the Mortgage and any
Additional Collateral Agreements related to such Mortgage Loan
are not subject to any right of rescission, set-off or
defense, including the defense of usury, nor will the
operation of any of the terms of such Mortgage Note and such
Mortgage (or any Additional Collateral Agreement), or the
exercise of any right thereunder, render such Mortgage (or any
Additional Collateral Agreement) unenforceable, in whole or in
part, or subject to any right of rescission, set-off or
defense, including the defense of usury and no such right of
rescission, set-off or defense has been asserted with respect
thereto; and
(18) No Defaults. (a) There is no default, breach, violation or
event of acceleration existing under the Mortgage, the
Mortgage Note, any Additional Collateral Agreement or any
other agreements, documents, or instruments related to such
Mortgage Loan; (b) there is no event that, with the lapse of
time, the giving of notice, or both, would constitute such a
default, breach, violation or event of acceleration; (c) the
Mortgagor(s) with respect to such Mortgage Loan is (1) not in
default under any other Mortgage Loan or (2) the subject of an
Insolvency Proceeding; (d) no event of acceleration has
previously occurred, and no notice of default has been sent,
with respect to such Mortgage Loan; and (e) in no event has
the Seller waived any of its rights or remedies in respect of
any default, breach, violation or event of acceleration under
the Mortgage, the Mortgage Note, any Additional Collateral
Agreement or any other agreements, documents, or instruments
related to such Mortgage Loan.
Section 3. Assignment of Security Interest.
(a) With respect to each Additional Collateral Mortgage Loan sold to
Purchaser under the Purchase and Servicing Agreement, the Servicer
hereby assigns to the Purchaser its security interest in and to any
Additional Collateral, all of its rights in each Additional
Collateral
-7-
Agreement, its right to receive amounts due or to become
due in respect of any Additional Collateral and its rights as
beneficiary under the Surety Bond in respect of any Additional
Collateral Mortgage Loans.
(b) For all purposes under the Purchase and Servicing Agreement, as to
any Additional Collateral Mortgage Loans sold thereunder, the Legal
Documents listed on Schedule B- 1 thereto shall include the
following:
o With respect to each Additional Collateral Mortgage Loan, a copy
of the related Mortgage 100(SM) Pledge Agreement or Parent
Power(R) Agreement, as the case may be.
o With respect to each Additional Collateral Mortgage Loan, a copy
of the UCC-l, to the extent Servicer received such UCC-l from
MLCC, and an original form UCC-3, if applicable, to the extent
Servicer received such UCC-3 from MLCC, together with a copy of
the applicable notice of assignment to and acknowledgment by
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.
o In connection with a Parent Power(R) Mortgage Loan supported by
a Parent Power(R) Guaranty Agreement for Real Estate, a copy of
the related Equity Access(R) Mortgage.
(c) With respect to any Additional Collateral Mortgage Loan for which
Servicer has received from MLCC a Form UCC-3, the Additional
Collateral Servicer shall cause to be filed in the appropriate
recording office a Form UCC-3 giving notice of the assignment of
the related security interest to the Purchaser and shall thereafter
cause the timely filing of all necessary continuation statements
with regard to such financing statements.
Section 4. Servicing of Additional Collateral.
(a) Subject to subsection (b) below, the Servicer shall service and
administer the Securities Accounts and other Additional Collateral,
in accordance with the terms of (i) the procedures it employs to
administer Securities Accounts for its own benefit (as the same may
be amended from time to time) and (ii) the related Additional
Collateral Agreements.
(b) Notwithstanding any other provision of this Agreement or in the
Loan Purchase and Sale Exhibit to the contrary, except as provided
below in this subsection (b), the Servicer shall have no duty or
obligation to supervise, monitor or oversee the activities of MLCC
or to enforce the obligations of MLCC with respect to any
Additional Collateral or any Surety Bond, including, without
limitation, the collection of any amounts owing to the Purchaser in
respect thereof, or to service and administer the Additional
Collateral, unless and until MLCC's obligations to administer the
Additional Collateral as provided in the Loan Purchase and Sale
Exhibit have been terminated with respect to the Additional
Collateral Mortgage
-8-
Loans sold under the Purchase and Servicing Agreement, in which
case the Servicer shall be bound to service and administer the
Additional Collateral and the Surety Bond in accordance with the
provisions of this Agreement and the related Additional Collateral
Agreements, from the date of such termination. The Servicer shall
use reasonable efforts to monitor the overall quality of MLCC's
administration of the Additional Collateral as provided in the Loan
Purchase and Sale Exhibit, and shall take appropriate action
thereunder if MLCC fails to substantially comply with its
obligations to administer the Additional Collateral. In the event
that Servicer receives an indemnification payment from MLCC as
provided in the Loan Purchase and Sale Exhibit that is attributable
to losses resulting from MLCC's failure to administer the
Additional Collateral in accordance with the terms set forth in the
Loan Purchase and Sale Exhibit in connection with Additional
Collateral Mortgage Loans sold under the Purchase and Servicing
Agreement, Servicer shall remit such amount to the Purchaser.
(c) The Additional Collateral Servicer shall use its best reasonable
efforts to realize upon any Additional Collateral for such of the
Additional Collateral Mortgage Loans as come into and continue in
default and as to which no satisfactory arrangements can be made
for collection of delinquent payments; provided that the Additional
Collateral Servicer shall not obtain title to any such Additional
Collateral as a result of or in lieu of the disposition thereof or
otherwise; and provided further that (i) the Additional Collateral
Servicer shall not proceed with respect to such Additional
Collateral in any manner that would impair the ability to recover
against the related Mortgaged Property, and (ii) the Servicer shall
proceed with any acquisition of REO Property in a manner that
preserves the ability to apply the proceeds of such Additional
Collateral against amounts owed under the defaulted Mortgage Loan.
Any proceeds realized from such Additional Collateral (other than
amounts to be released to the Mortgagor or the related guarantor in
accordance with procedures that the Servicer would follow in
servicing loans held for its own account, subject to the terms and
conditions of the related Mortgage and Mortgage Note and to the
terms and conditions of any security agreement, guarantee
agreement, mortgage or other agreement governing the disposition of
the proceeds of such Additional Collateral) shall be deposited in
the Collection Account, subject to withdrawal pursuant to Section
5.05 of the Purchase and Servicing Agreement; provided, that such
proceeds shall not be so deposited if the Required Surety Payment
in respect of such Additional Collateral Mortgage Loan has been
deposited in the Collection Account or otherwise paid to the
Purchaser (except to the extent of any such proceeds taken into
account in calculating the amount of the Required Surety Payment).
(d) Servicer shall be released from its obligations to administer the
Securities Accounts or the Parent Power Guaranty Agreement for Real
Estate as
-9-
applicable upon termination of the related Pledge Agreement or the
Parent Power(R) Guaranty Agreement for Real Estate. Purchaser
acknowledges that it shall no longer be afforded coverage under the
terms and provisions of the Surety Bond as to any particular
Additional Collateral Mortgage Loan upon termination of the related
Pledge Agreement or the Parent Power(R) Guaranty Agreement For Real
Estate.
(e) The Additional Collateral Servicer may, without the consent of the
Purchaser, amend or modify a Mortgage 100 Pledge Agreement or a
Parent Power Agreement in any non-material respect to reflect
administrative or account changes, provided that the same are
consistent with the Underwriting Guide.
Section 5. Surety Bond.
(a) If a Required Surety Payment is payable pursuant to the Surety Bond
with respect to any Additional Collateral Mortgage Loan, as
determined by the Additional Collateral Servicer, the Additional
Collateral Servicer shall so notify the Purchaser as soon as
reasonably practicable. The Additional Collateral Servicer shall
promptly complete the notice in the form of Attachment 1 to the
Surety Bond and shall promptly submit such notice to the Surety
Bond Issuer as a claim for a required surety. The Purchaser shall
execute such notice if requested by the Additional Collateral
Servicer.
(b) In the event that the Servicer receives a Required Surety Payment
from the Surety Bond Issuer on behalf of the Purchaser, the
Servicer shall deposit such Required Surety Payment in the
Collection Account and shall distribute such Required Surety
Payment, or the proceeds thereof, in accordance with the provisions
of the Purchase and Servicing Agreement applicable to Insurance
Proceeds.
(c) Purchaser shall, to the extent required by Surety Bond Issuer,
enter into an indemnification agreement with Surety Bond Issuer
pursuant to which Purchaser will indemnify Surety Bond Issuer in
respect of Additional Collateral Mortgage Loans as to certain
matters, including but not limited to any securitization of the
Additional Collateral Mortgage Loans. Purchaser will cooperate with
Servicer to transfer to Purchaser the coverage of the Surety Bond
in respect of the Additional Collateral Mortgage Loans.
Section 6. Non-Disclosure. With respect to the sale or potential sale
of any of the Additional Collateral Mortgage Loans, Purchaser shall not use,
circulate, quote, or otherwise refer to Surety Bond Issuer or the Surety Bond
for any purpose, including but not limited to the registration, purchase and
sale of securities, nor file the Surety Bond with or refer to it or Surety Bond
Issuer as part of any registration statement or offering document, without the
express prior written consent of the Surety Bond Issuer as to both
-10-
form and substance of such disclosure, and notice to the Servicer. Purchaser may
in no way publicly disclose the existence of the Surety Agreement without the
express written consent of the Surety Bond Issuer, and notice to the Servicer.
Section 7. Termination. The respective obligations and responsibilities
of the Servicer and the Purchaser created hereby shall terminate, upon the
termination of the Servicer's servicing obligations under the Purchase and
Servicing Agreement in respect of the Additional Collateral Mortgage Loans sold
thereunder.
Section 8. Amendment. This Agreement may be amended from time to time
by parties hereto by written agreement signed by the Servicer and the Purchaser.
Section 9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 10. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person shall have any right or obligation
hereunder.
Section 11. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, postage prepaid, addressed as
follows:
(i) if to the Servicer:
or, such other address as may hereafter be furnished to the Purchaser in writing
by the Servicer.
(ii) if to the Purchaser:
________________________________
or such other address as may hereafter be furnished to the Servicer in writing
by the Purchaser.
(iii) if to the Surety Bond Issuer:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Vice President
Section 12. Severability of Provisions. If any one or more of the
covenants, agreements, provisions of terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this
-11-
Agreement and shall in no way affect the validity of enforceability of the other
provisions of this Agreement.
Section 13. Relationship of Parties. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture between the parties
hereto.
Section 14. Counterparts. This Agreement may be executed in one or more
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed, shall be deemed to be an original and such
counterparts, together, shall constitute one and the same agreement.
Section 15. Further Agreements. The Servicer and the Purchaser each
agree to execute and deliver to the other such additional documents, instruments
or agreements as may be necessary or appropriate to effectuate the purposes of
this Agreement.
-12-
IN WITNESS WHEREOF, the Servicer and the Purchaser have caused their
names to be signed to this Agreement by their respective officers thereunto duly
authorized as of the day and year first above written.
CENDANT MORTGAGE CORPORATION
By:__________________________
Name:
Title:
▇▇▇▇▇▇ BROTHERS BANK, FSB
By:__________________________
Name:
Title:
EXHIBIT A
LOAN PURCHASE AND SALE EXHIBIT
The following provisions are excerpted from the Loan Purchase and Sale
Agreement, dated as of December 15, 2000, between MLCC and Servicer:
Section 8. Representations and Warranties of MLCC as to Pledged Asset
Services. MLCC represents and warrants to Cendant that prior to its assignment
to the related investor, MLCC has a first priority perfected security interest
in each Securities Account, or, if necessary to perfect a first priority
security interest in each asset contained in such Securities Account, a first
priority perfected security interest in each such asset contained in such
Securities Account and following MLCC's assignment of the Pledge Agreements and
related security interest, the related investor has a first priority perfected
security interest in each Securities Account, or if necessary to perfect a first
priority security interest in each asset contained in such Securities Account, a
perfected first priority security interest in each such asset contained in such
Securities Account.
Section 11. Indenmification. (a) Each Party hereto (each an
"Indemnitor") agrees to indemnify, defend and hold harmless the other Party and
each of its respective officers, directors, employees, agents, attorneys,
members and shareholders of each of the foregoing (collectively called the
"Indemnitees") from and against any and all Losses (as that term is defined in
the Origination Agreement) imposed on, incurred by or asserted against such
Indemnitees, whether brought under common law or in equity, or in contract, tort
or otherwise, caused by, arising from or connected with (i) the breach by the
Indemnitor of any term, condition, representation, obligation or warranty of
such Indernnitor set forth in this Agreement or (ii) the negligence or willful
misconduct of the Indemnitor.
(b) Before either party is entitled to indemnification as provided in
this Section 11, the Party claiming indemnification shall give notice to the
other Party of the claimed breach, and the other Party shall have sixty (60)
days to cure such breach, which period shall have expired before either Party
may enforce rights to indemnification hereunder. Cure of the breach within such
sixty (60) day period shall not relieve the breaching Party from its obligations
to indemnify the other Party for the Losses suffered by the other Party on
account of the breach by the breaching Party.
(c) The indemnification provisions contained in this Section 11 shall
survive the termination of this Agreement.
EXHIBIT B (Servicing Provisions) 10. Notwithstanding anything to the
contrary in the Purchase Agreement, MLCC shall service and administer all
Additional Collateral, it being understood and agreed that only MLCC shall
service and administer the related securities accounts, lines of credit, Equity
Access Loans and guarantees with respect to Additional Collateral Agreements.