Exhibit 10.2(F)
ADDITIONAL COLLATERAL ASSIGNMENT AND SERVICING AGREEMENT
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This ADDITIONAL COLLATERAL ASSIGNMENT AND SERVICING AGREEMENT (this
"Agreement"), dated as of April 30, 2003, is made between Cendant Mortgage
Corporation (the "Servicer") and PNC Bank, National Association (the
"Purchaser").
W I T N E S S E T H:
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WHEREAS, Purchaser is the Purchaser pursuant to the terms and provisions of
that certain Mortgage Loan Flow Purchase, Sale and Servicing Agreement, dated
April 30, 2003, among the Servicer, ▇▇▇▇▇▇'▇ Gate Residential Mortgage Trust
(formerly known as Cendant Residential Mortgage Trust) 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 (as
defined herein) 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 100K Pledge
Agreement (as defined herein); or (b) a Parent Power(R) Agreement (as defined
herein); and
WHEREAS, in connection with the Mortgage 100K Loans and those Parent
Power(R) Mortgage Loans supported by a Parent Power(R) Guaranty and Security
Agreement for Securities Account or a Mortgage 100K Pledge Agreement
(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) Mortgage 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, certain provisions of which are attached to this Agreement as Exhibit
A, 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:
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 100K Loan, the
Securities Account and the financial assets held therein subject to a security
interest pursuant to the related Mortgage 100K 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 100K Pledge Agreement,
Parent Power(R) Guaranty and Security Agreement for Securities Account, Parent
Power(R) Guaranty Agreement for Real Estate, Control Agreement, Equity Access(R)
Agreement and Equity Access(R) Mortgage, as applicable, 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 Servicer": Either (i) MLCC or (ii) Cendant, as
applicable under and conditions of this 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 100K Loan, the ▇▇▇▇▇▇▇
▇▇▇▇▇ Pledged Collateral Account Control Agreement between the guarantor or
mortgagor, as applicable, the Additional Collateral 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 Additional Collateral 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.
"Loan Purchase and Sale Agreement": The Loan Purchase and Sale Agreement,
dated as of December 15, 2000, between MLCC and Cendant, and exhibits thereto,
pursuant to which MLCC shall service and administer 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 100K 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 100K Pledge Agreement": With respect to each Mortgage 100K 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 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 100K 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 is the
subject of the related Mortgage 100K 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 Ambac 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.
"Surety Bond Issuer": 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
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(a) Servicer hereby represents and warrants to Purchaser that prior to its
assignment to Purchaser of the security interest in and to any
Additional Collateral set forth in Section 3 hereof, Servicer had a
first priority perfected security interest in each Securities Account,
and/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 such security interest in and to any Additional
Collateral, Purchaser has a first priority perfected security interest
in each Securities Account, and/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. Servicer hereby represents
and warrants to Purchaser that the representations and warranties
contained in Exhibit A hereto are true and correct as of the Funding
Date. Servicer further represents and warrants that all rights
assigned hereunder to Purchaser are fully and freely assignable by
Servicer.
(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 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 Mortgage Loans purchased by
Purchaser from Cendant under the Purchase and Servicing Agreement. The
indemnification obligation provided in this subparagraph 2(b) 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.
(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, and in addition to and not in limitation of any remedies to
which Purchaser is otherwise entitled under the Purchase and Servicing
Agreement with respect to any Mortgage Loan (including any Additional
Collateral Mortgage Loan), Purchaser shall be entitled to all remedies
available under the Purchase and Servicing Agreement for any breach of
the following representations as fully as if they were set forth in
Section 3.03 of the Purchase and Servicing Agreement:
(4) Payments Current. All payments required to be made up to
and including the Funding Date for such Mortgage Loan under
the terms of the Mortgage Note have been made, such that
such Mortgage Loan is not delinquent 30 days or more on the
Funding Date, and neither the Mortgage Loan nor the
Additional Collateral (if applicable) has been dishonored.
Unless otherwise disclosed in the Offering Materials or the
Mortgage Loan Schedule, there has been no delinquency,
exclusive of any period of grace, in any payment by the
Mortgagor thereunder during the twelve months preceding the
Funding Date;
(6) Original Terms Unmodified. The terms of the Mortgage
Note, the Mortgage and any Additional Collateral 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;
(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; and
(46) The Loan Purchase and Sale Agreement and the Additional
Collateral Agreements are in full force and effect as of the
Funding Date and their provisions have not been waived,
amended or modified in any respect, nor has any notice of
termination been given thereunder. Servicer represents to
Purchaser that as of the Funding Date, neither Servicer nor
MLCC is in default under the Loan Purchase and Sale
Agreement.
(e) As of the Funding Date, the excerpted provisions of the Loan Purchase
and Sale Agreement contained in Exhibit A hereto are the true,
accurate and complete provisions from the Loan Purchase and Sale
Agreement relating to the subject matter thereof.
(f) It is understood and agreed that the representations and warranties
set forth in this Agreement shall survive the sale of the Additional
Collateral Mortgage Loans to Purchaser, and subject to the terms of
the Purchase and Servicing Agreement, Purchaser shall be entitled to
all remedies available under the Purchase and Servicing Agreement,
including but not limited to the repurchase and indemnification
remedies set forth in Sections 3.04 and 9.01 thereof, for any breach
of the representations and warranties contained in this Agreement.
Section 3. Assignment of Security Interest
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(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
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 100K 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-1, to the extent MLCC was required to deliver such UCC-1 to
Servicer, and an original form UCC-3, if applicable, to the extent
MLCC was required to deliver such UCC-3 to Servicer, together with
a copy of the applicable notice of assignment to and 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 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. Servicer's breach of this Section 3(c) shall give rise to
the rights and remedies contained in the Purchase and Servicing
Agreement.
(d) If any of the documents referred to in subsection (b) or (c) is
defective or missing in any material respect, then the remedies set
forth in Section 2.04 of the Purchase and Servicing Agreement shall be
available.
Section 4. Servicing of Additional Collateral.
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(a) The parties acknowledge that pursuant to the Loan Purchase and Sale
Agreement between Servicer and MLCC, the Securities Accounts and other
Additional Collateral in which Purchaser shall (pursuant to the terms
of this Agreement) have a security interest, shall continue to be
maintained and serviced by MLCC. Servicer represents and warrants that
the terms of the Loan Purchase and Sale Agreement are not inconsistent
with any of the provisions of this Agreement or of the Purchase and
Servicing Agreement between Servicer and Purchaser. Subject to
subsection (b) below, the Servicer shall service and administer the
Securities Accounts and other Additional Collateral, in accordance
with (i) prudent business practices and procedures employed in the
industry to administer securities accounts and additional collateral
similar to that securing the Additional Collateral Mortgage Loans;
(ii) the terms of the related Additional Collateral Agreements; and
(iii) the terms of this Agreement and with the Purchase and Servicing
Agreement between the parties, as applicable. Servicer's obligations
under this Agreement will be subject to the provisions of Section 9.04
of the Purchase and Servicing Agreement.
(b) Notwithstanding any other provision of this Agreement or in the Loan
Purchase and Sale Agreement to the contrary, except as provided below
in this subsection (b), the Servicer shall have no duty or obligation
to service and administer the Additional Collateral, and the Servicer
shall not be deemed to be the Additional Collateral Servicer, unless
and until MLCC's obligations to administer the Additional Collateral
as provided in the Loan Purchase and Sale Agreement have been
terminated with respect to the Additional Collateral Mortgage 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 enforce the
obligations of MLCC to service and administer the Additional
Collateral as provided in the Loan Purchase and Sale Agreement, and
shall take appropriate action thereunder if MLCC fails to
substantially comply with its obligations to administer the Additional
Collateral. Such enforcement, including without limitation, the legal
prosecution of claims, termination of the Loan Purchase and Sale
Agreement with respect to the Additional Collateral Mortgage Loans,
and the pursuit of other appropriate remedies, shall be carried out as
the Servicer, in its good faith business judgment, would require were
it the owner of the related Securities Accounts and other Additional
Collateral. Without in any way limiting any other remedies set forth
herein, Servicer shall indemnify Purchaser and 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 (collectively,
"Losses") that arise with respect to Additional Collateral Mortgage
Loans purchased by Purchaser from Servicer under the Purchase and
Servicing Agreement, provided that (i) such Losses are caused by
MLCC's failure to administer the Additional Collateral as provided in
the Loan Purchase and Sale Agreement and in a manner consistent with
the standard set forth in subsection (a) above, (ii) the
indemnification contained in this Section 4(b) will in no event exceed
the Original Additional Collateral Requirement for the related
Additional Collateral Mortgage Loan, and (iii) such indemnification
liability shall be offset to the extent that the Losses are covered by
a Surety Bond Payment.
(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's obligations to administer the Securities Accounts or the
Parent Power(R) Guaranty Agreement for Real Estate as applicable shall
terminate upon termination of the related Pledge Agreement or the
Parent Power(R) Guaranty Agreement for Real Estate. Purchaser
acknowledges coverage under the terms and provisions of the Surety
Bond as to any particular Additional Collateral Mortgage Loan shall
terminate upon termination of the related Pledge Agreement or the
Parent Power(R) Guaranty Agreement for Real Estate; provided, however,
that such termination shall not affect claims arising under this
Agreement or the Surety Bond prior to the date of termination of the
related Pledge Agreement or 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 100K Pledge Agreement or a
Parent Power(R) 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
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(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 Servicer, the Additional Collateral Servicer shall so notify
the promptly. The Servicer shall cause the prompt completion of the
notice in the form of Attachment 1 to the Surety Bond and shall cause
the prompt submission of 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 will cooperate with Servicer to transfer to Purchaser the
coverage of the Surety Bond in respect of the Additional
Collateral Mortgage Loans.
Section 6. 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; provided, however, that any liabilities arising prior to
that time shall survive such termination.
Section 7. Amendment. This Agreement may be amended from time to time by
parties hereto by written agreement signed by the Servicer and the
Purchaser.
Section 8. 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 9. 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 10. 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:
Cendant Mortgage Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Mail Stop SM1
▇▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Esq.
or, such other address as may hereafter be furnished to the Purchaser in
writing by the Servicer.
(ii) if to the Purchaser:
PNC Bank, National Association
1 PNC Plaza
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
or such other address as may hereafter be furnished to the Servicer in
writing by the Purchaser.
(iii) if to the Surety Bond Issuer pursuant to Section 5(a), initally:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Vice President
Ambac Assurance Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Section 11. 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 Agreement and shall in no way
affect the validity of enforceability of the other provisions of this
Agreement.
Section 12. Relationship of Parties. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture between the
parties hereto.
Section 13. 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 14. 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.
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: ____________________________
PNC BANK NATIONAL ASSOCIATION
By: _______________________________
Name: _____________________________
Title: ____________________________
EXHIBIT A
LOAN PURCHASE AND SALE AGREEMENT 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. Indemnification. (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 Indemnitor 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.