EXHIBIT 99.3
EXECUTION COPY
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT CORPORATION
Owner
and
CENDANT MORTGAGE CORPORATION
Company
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PORTFOLIO SERVICING AGREEMENT
Dated as of January 28, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS............................................................................................ 2
Section 1.01. Incorporation of Recitals; Defined Terms....................................................... 2
Section 1.02. General........................................................................................ 13
ARTICLE II COMPANY TO SERVICE MORTGAGE LOANS..................................................................... 13
Section 2.01. Company to Act as Servicer..................................................................... 13
Section 2.02. Title, Management and Disposition of REO Property.............................................. 15
Section 2.03. Defaulted Mortgage Loans....................................................................... 16
Section 2.04. Owner's Right to Examine Company Records....................................................... 17
Section 2.05. Legal Proceedings Involving the Company and/or the Mortgage Loans.............................. 17
Section 2.06. Material Changes............................................................................... 17
Section 2.07. Company Shall Provide Information as Reasonably Required....................................... 18
Section 2.08. Company Not to Resign.......................................................................... 19
Section 2.09. Training....................................................................................... 19
Section 2.10. Custodial Funds Accounts and Escrow Accounts................................................... 19
Section 2.11. Assumption Processing.......................................................................... 19
Section 2.12. Transfer of Funds to the Custodial Funds Accounts and Escrow Accounts; Payments of Advances.... 20
ARTICLE III OWNER REPRESENTATIONS AND WARRANTIES................................................................. 20
Section 3.01. Organization and Good Standing................................................................. 20
Section 3.02. Authority and Capacity; Ordinary Course........................................................ 20
Section 3.03. Effective Agreement............................................................................ 20
Section 3.04. No Conflict.................................................................................... 20
Section 3.05. Approvals and Compliance....................................................................... 21
Section 3.06. Insurance...................................................................................... 21
Section 3.07. Litigation..................................................................................... 21
Section 3.08. Financial Condition of Owner................................................................... 21
ARTICLE IV COMPANY REPRESENTATIONS AND WARRANTIES................................................................ 21
Section 4.01. Organization and Good Standing................................................................. 21
Section 4.02. Authority and Capacity; Ordinary Course........................................................ 22
Section 4.03. Effective Agreement............................................................................ 22
Section 4.04. No Conflict.................................................................................... 22
Section 4.05. Approvals and Compliance....................................................................... 22
Section 4.06. Litigation..................................................................................... 22
Section 4.07. Agency Approval................................................................................ 23
Section 4.08. Servicing Compliance........................................................................... 23
Section 4.09. No Inquiries................................................................................... 23
Section 4.10. Contingency Plan............................................................................... 23
Section 4.11. Licenses and Approvals......................................................................... 23
Section 4.12. Fidelity and E&O Insurance..................................................................... 24
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Section 4.13. Sufficiency of Systems and Personnel........................................................... 24
Section 4.14. Compliance with Laws........................................................................... 24
Section 4.15. Financial Condition of the Company............................................................. 24
ARTICLE V BOOKS AND RECORDS; TRANSFER OF MORTGAGE LOANS.......................................................... 25
Section 5.01. Books and Records.............................................................................. 25
Section 5.02. Transfer of Mortgage Loans..................................................................... 25
ARTICLE VI PAYMENTS TO THE OWNER................................................................................. 27
Section 6.01. Paid-in-Full Remittances....................................................................... 27
Section 6.02. Monthly Remittances............................................................................ 27
Section 6.03. Monthly Advances by the Company................................................................ 28
Section 6.04. Statements to the Owner........................................................................ 28
Section 6.05. Form of Payment; Interest on Late Payments..................................................... 29
ARTICLE VII SERVICING COMPENSATION............................................................................... 29
Section 7.01. Servicing Compensation......................................................................... 29
Section 7.02. Adjustments to Servicing Compensation.......................................................... 30
Section 7.03. Computation and Payment of Final Purchase Price Adjustment..................................... 30
ARTICLE VIII SOLICITATION........................................................................................ 31
Section 8.01. Solicitation................................................................................... 31
ARTICLE IX CONDITIONS PRECEDENT TO OBLIGATIONS OF THE OWNER AND THE COMPANY...................................... 32
Section 9.01. Transaction Agreements......................................................................... 32
ARTICLE X DEFAULT ............................................................................................... 32
Section 10.01. Events of Default.............................................................................. 32
Section 10.02. [REDACTED]..................................................................................... 34
Section 10.03. Waiver of Defaults............................................................................. 34
Section 10.04. Termination without Cause...................................................................... 34
Section 10.05. Effect of Termination of Agreement............................................................. 34
ARTICLE XI ANNUAL CERTIFICATIONS................................................................................. 35
Section 11.01. Annual Statement as to Compliance.............................................................. 35
Section 11.02. Annual Independent Certified Public Accountants' Servicing Reports............................. 35
ARTICLE XII INDEMNIFICATION...................................................................................... 36
Section 12.01. Indemnification of the Company................................................................. 36
Section 12.02. Indemnification of the Owner................................................................... 36
Section 12.03. Notice and Settlement of Claims................................................................ 37
ARTICLE XIII SUCCESSOR TO THE COMPANY............................................................................ 38
Section 13.01. Successor to the Company....................................................................... 38
ARTICLE XIV ANTI-MONEY LAUNDERING................................................................................ 39
Section 14.01. Compliance..................................................................................... 39
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ARTICLE XV MISCELLANEOUS......................................................................................... 40
Section 15.01. Supplementary Information...................................................................... 40
Section 15.02. Access to Information; Confidentiality......................................................... 40
Section 15.03. Further Assurances............................................................................. 41
Section 15.04. Survival....................................................................................... 41
Section 15.05. Governmental Authorities; Laws and Severability................................................ 41
Section 15.06. Form of Payment to be Made..................................................................... 41
Section 15.07. Assignability.................................................................................. 41
Section 15.08. Certain Costs.................................................................................. 42
Section 15.09. Notices........................................................................................ 42
Section 15.10. Entire Agreement; Construction................................................................. 43
Section 15.11. Binding Effect................................................................................. 43
Section 15.12. Headings; Plurals; Genders..................................................................... 43
Section 15.13. Applicable Law................................................................................. 44
Section 15.14. Counterparts................................................................................... 44
Section 15.15. Waivers........................................................................................ 44
Section 15.16. Publicity...................................................................................... 44
Section 15.17. No Third Party Beneficiaries................................................................... 44
Section 15.18. Attorney Fees, Costs, etc...................................................................... 44
Section 15.19. Merger or Consolidation of the Owner and the Company........................................... 44
EXHIBITS
A. Form of Report Concerning Defaulted Mortgage Loans and REO Properties
B. Owner's Fiscal Month Ends Through December 2000
C. Mortgage Loan Schedule
D. Operations Guide
E. Execution Date Pricing Matrix
F. Form of Limited Power of Attorney
G. Reports to be Submitted Pursuant to Section 6.03
H-1 Custodial Funds Account Certification
H-2 Escrow Account Certification
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This PORTFOLIO SERVICING AGREEMENT (the "Agreement"), dated and
effective as of January 28, 2000, between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Corporation, as
owner (the "Owner"), and Cendant Mortgage Corporation, as servicer (the
"Company"),
W I T N E S S E T H:
WHEREAS, the Owner is in the business of originating, acquiring and
servicing residential first lien mortgage loans;
WHEREAS, the Company is in the business of originating, servicing and
subservicing residential first lien mortgage loans;
WHEREAS, the Owner and the Company have executed a Servicing Rights
Purchase and Sale Agreement dated as of the date hereof, pursuant to which the
Company has agreed to purchase servicing rights from the Owner with respect to
certain residential first lien mortgage loans from time to time;
WHEREAS, the Owner and the Company have executed a Loan Subservicing
Agreement dated as of the date hereof, pursuant to which the Company has agreed
to subservice on behalf of the Owner certain residential first lien mortgage
loans, for which Owner is the servicer;
WHEREAS, the Owner and the Company have executed or will execute a
Securitized Loan Primary Servicing Agreement dated as of the date hereof,
pursuant to which the Company has agreed to subservice on behalf of the Owner
certain securitized residential first lien mortgage loans, for which Owner is
the master servicer;
WHEREAS, the Owner owns certain other residential first lien mortgage
loans and will be originating residential first lien mortgage loans and the
parties hereto desire the Company to service such mortgage loans for the Owner
and continue to service such mortgage loans that the Owner subsequently sells to
FNMA, institutional investors or into securitizations;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the Owner and the Company agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. INCORPORATION OF RECITALS; DEFINED TERMS.
The foregoing recitals are hereby incorporated herein by reference.
Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meaning specified in this
Article:
ADDITIONAL COLLATERAL means (i) with respect to any Mortgage 100(SM)
Loan, the marketable securities 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.
ADDITIONAL COLLATERAL AGREEMENT means a Mortgage 100(SM) Pledge
Agreement, Parent Power(R) Guaranty and Security Agreement for Securities
Account and Parent Power(R) Guaranty Agreement for Real Estate.
ADDITIONAL COLLATERAL MORTGAGE LOAN means each Mortgage Loan that is
either a Mortgage 100(SM) Loan or Parent(R) Power Mortgage Loan as to which the
Additional Collateral is still required to be provided.
AFFILIATE means, with respect to any Person, any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, such Person (Capitalized terms derived from the word Affiliate (e.g.,
"Affiliated") shall have corresponding meanings.) For the purposes of this
definition, "control," "controlled by," and "under common control with" means
the direct or indirect possession of ordinary voting powers to elect a majority
of the board of directors or comparable body of a Person.
AGREEMENT means this Portfolio Servicing Agreement and all exhibits
hereto, all of which are incorporated herein by this reference, as the same may
from time to time be amended or supplemented by one or more instruments executed
by all parties hereto.
ANCILLARY FEES means, with respect to any Mortgage Loan, (i) all late
charges, (ii) all fees payable pursuant to Cendant's "Speed Pay" program, (iii)
all returned-item charges (e.g. NSF charges) and (iv) modification or conversion
fees.
APPLICABLE REQUIREMENTS means and includes, as of the time of
reference, with respect to the Mortgage Loans, all of the following: (a) all
contractual obligations of Owner (and any Originator and/or Prior Servicer) or
Company contained in this Agreement, the other Transaction Agreements, the
Mortgage Loan Documents, the applicable guides or any agreement with any
Insurer, for which obligations Owner (and any Originator and/or Prior Servicer)
or Company is responsible or at any time was responsible; (b) all applicable
federal, state, and local legal and regulatory requirements (including laws,
statutes, rules, regulations, and ordinances) binding
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upon Owner (and any Originator and/or Prior Servicer) or Company; (c) all other
applicable requirements and guidelines of each governmental agency, board,
commission, instrumentality, and other governmental body or office having
jurisdiction, including, but not limited to, those of any Insurer; (d) all other
applicable judicial and administrative judgments, orders, stipulations, awards,
writs, and injunctions; (e) with respect to Company's obligations, the
provisions of the Operations Guide; and (f) the reasonable and customary
mortgage servicing practices of prudent mortgage lending institutions that
service mortgage loans of the same type as the Mortgage Loans in the
jurisdiction in which the related Mortgaged Properties are located.
APPRAISED VALUE means, with respect to any Mortgage Loan, the value of
the related Mortgaged Property based upon the lesser of (i) the appraisal made
for the Originator 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.
ARBITRATOR means, with respect to any arbitrator selected by a party to
this Agreement, an arbitrator that is Independent of such party and has
expertise in the valuation of mortgage loan servicing rights.
ARM LOAN means a Mortgage Loan with a Mortgage Rate that is adjustable
pursuant to the terms of the related Mortgage Note.
ASSIGNMENT means, with respect to a Mortgage Loan, a written instrument
that, when recorded in the appropriate office of the local jurisdiction in which
the related Mortgaged Property is located, will reflect the transfer of the
Mortgage Instrument identified therein from the transferor to the transferee
named therein.
BASE SERVICING FEE RATE means with respect to any Mortgage Loan, the
fee payable monthly to the Company pursuant to Section 7.01 at the rate per
annum set forth in the Pricing Matrix.
BSA means the regulations set forth in 31 C.F.R. Part 103, promulgated
under the Bank Secrecy Act, 12 U.S.C. Section 1829b, 12 U.S.C. Sections 1951-
1959 and 31 U.S.C. Sections 5311-5330, and similar requirements under state laws
and regulations.
BSA POLICIES AND PROCEDURES shall have the meaning given in Article XIV
hereof.
BUSINESS DAY means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in the States of New Jersey, Florida or New
York are required or authorized by law or by executive order to be closed or
(iii) a day on which Owner or the Company is not actually open for business.
CENDANT means Cendant Mortgage Corporation and its successors in
interest.
CENDANT MORTGAGE LOAN means a Mortgage Loan originated by the Company
pursuant to the Origination Agreement.
COMPANY means Cendant or any successor under this Agreement appointed
as herein provided.
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COMPANY INDEMNIFIED PARTIES shall have the meaning given in Section
12.01 hereof.
COMPLEX DEFAULTED MORTGAGE LOAN shall have the meaning given in Section
2.03(b) hereof.
CONDEMNATION PROCEEDS means all awards or settlements in respect of a
taking of a partial or an entire Mortgaged Property by exercise of the power of
eminent domain or condemnation.
CUSTODIAL FUNDS ACCOUNT means the separate trust account or accounts
created and maintained pursuant to the FNMA Servicing Guide and which shall be
entitled "Cendant Mortgage Corporation, in trust for ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit
Corporation, Investor Number _________" or such other title as is requested by
the Owner.
DEFAULTED MORTGAGE LOAN means any Mortgage Loan (i) as to which a
Monthly Payment is three (3) months or more past due or (ii) for which the
Mortgagor has filed for bankruptcy or (iii) for which foreclosure proceedings
have been commenced or are underway.
DUE DATE means the first day of the month, which is the day each
Monthly Payment is due on a Mortgage Loan, exclusive of any days of grace.
EDP means the electronic data processing system used by Owner and the
Company, which are licensees of ALLTEL Information Services, Inc.
EQUITY ACCESS(R) AGREEMENT means the revolving line of credit agreement
entered into between MLCC 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 MLCC 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 means 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.
ESCROW ACCOUNT means the separate trust account or accounts created and
maintained pursuant to the FNMA Servicing Guide which shall be entitled "Cendant
Mortgage Corporation, in trust for ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Corporation and various
mortgagors, Investor Number ________," or such other title as is requested by
Owner.
EXCESS SERVICING means that portion of the interest rate on a Mortgage
Loan (other than the contractual Servicing Fee under a servicing agreement with
a Subsequent Purchaser) payable to the Owner as excess servicing compensation.
EXECUTION DATE PRICING MATRIX means the pricing matrix attached hereto
as EXHIBIT E.
FAIR MARKET VALUE means the average of the fair market values as
determined by two Arbitrators, one selected by the Owner and one selected by the
Company, which Arbitrators shall use commercially reasonable methods to
determine the appropriate pricing for the Servicing
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Rights related to such Mortgage Loans. The Owner and the Company will exchange
appropriate documentation supporting the opinions of their respective
Arbitrators.
FEDERAL FUNDS RATE means the per annum rate of interest (rounded upward
to the nearest 1/100 of 1%) that is the weighted average of the rates on
overnight federal funds transactions arranged on such day or, if such day is not
a Business Day, the previous Business Day, by federal funds brokers computed and
released by the Federal Reserve Bank of New York (or any successor) in
substantially the same manner as such Federal Reserve Bank currently computes
and releases the weighted average it refers to as the "Federal Funds Effective
Rate" at the date of this Agreement.
FDIC means the Federal Deposit Insurance Corporation or any successor
thereto.
FHA means the Federal Housing Administration or any successor thereto.
FHLMC means the Federal Home Loan Mortgage Corporation or any successor
thereto.
FINAL PURCHASE PRICE ADJUSTMENT means with respect to a Mortgage Loan,
the product of (i) the outstanding principal balance as of a particular date and
(ii) the corresponding applicable percentage(s) set forth on the Pricing Matrix
relating to the Final Servicing Fee Rate, loan size, escrow characteristics,
remittance style, and Maximum Interest Rate, less the amount previously paid
pursuant to the Purchase and Sale Agreement for the Servicing Rights relating to
such Mortgage Loan.
FINAL SERVICING FEE RATE means, with respect to any Mortgage Loan that
is the subject of a Transfer, the portion of the Gross Yield Differential
payable to the Company pursuant to Section 7.02, as determined by the Owner.
Such rate shall be expressed on a per annum basis and be payable monthly.
FISCAL MONTH END means, with respect to any calendar month, the date
the Owner considers to be the last day of the related fiscal month for
accounting purposes. The Owner's Fiscal Month Ends through December 2000 are
detailed in EXHIBIT B. No later than December 1st of every year that this
Agreement is in effect, the Owner shall provide the Company an updated list of
the Owner's Fiscal Month Ends through December of the following year, such list
to be substantially in the form of EXHIBIT B.
FISCAL MONTH REMITTANCE means, with respect to any calendar month, the
remittance made to the Owner, pursuant to Section 6.02(b), of collections of
principal and interest received by the Company on the Warehouse Mortgage Loans
and Special Warehouse Mortgage Loans from the 17th day of such calendar month up
to and including the related Fiscal Month End.
FISCAL MONTH REMITTANCE DATE means with respect to each Fiscal Month
Remittance, the date on which the related remittance of collections of principal
and interest on the Warehouse Mortgage Loans and Special Warehouse Mortgage
Loans is made to the Owner, which shall be within five (5) Business Days after
the related Fiscal Month End.
FNMA means the Federal National Mortgage Association or any successor
thereto.
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FNMA LOAN means any Mortgage Loan guaranteed by and/or serviced for or
on behalf of FNMA, as investor.
FNMA SERVICING GUIDE means the FNMA Servicing Guide, as amended from
time to time.
GNMA means the Government National Mortgage Association or any
successor thereto.
GROSS YIELD DIFFERENTIAL means, with respect to any Mortgage Loan that
is the subject of a Transfer, the difference between the Mortgage Rate and the
rate to be remitted to a Subsequent Purchaser.
HUD means the Department of Housing and Urban Development.
INDEMNIFIED PARTY shall have the meaning given in Section 12.03(b)
hereof.
INDEMNIFYING PARTY shall have the meaning given in Section 12.03(b)
hereof.
INDEPENDENT means, with respect to the Owner or the Company, that such
Person does not have any material direct financial interest in or any material
indirect financial interest in the Owner or the Company and has no connection
with the Owner or the Company or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions.
INSURANCE PROCEEDS means the proceeds of any mortgage insurance policy,
title policy, hazard policy or other insurance policy covering a Mortgage Loan,
if any, to the extent such proceeds are not to be applied to the restoration of
the related Mortgaged Property or released to the Mortgagor in accordance with
the procedures the Company is required to follow in servicing mortgage loans
pursuant to this Agreement.
INSURER means an entity that insures or guarantees all or part of the
risk of loss on a Mortgage Loan, including but not limited to, any private
mortgage insurance provider, standard hazard insurance provider, flood insurance
provider, earthquake insurance provider or title insurance provider.
INTERIM REMITTANCE means, with respect to any specified calendar month,
the remittance made to the Owner, pursuant to Section 6.02(a), of collections of
principal and interest received by the Company on the Warehouse Mortgage Loans
and Special Warehouse Mortgage Loans from the day after the Fiscal Month End of
the preceding calendar month up to and including the 16th day of the specified
calendar month.
INTERIM REMITTANCE DATE means with respect to each Interim Remittance,
the date on which the related remittance of collections of principal and
interest on the Warehouse Mortgage Loans and Special Warehouse Mortgage Loans is
made to the Owner, which shall be within five (5) Business Days after the
sixteenth (16th) day of the related calendar month.
KNOWLEDGE means that whenever any representation, warranty or other
statement contained in this Agreement is qualified by reference to "Owner's or
the Company's
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knowledge" or "to the best of Owner's or the Company's knowledge," that
qualified reference shall be deemed to include knowledge of facts or conditions
of which Owner or the Company either is actually aware of or should have been
aware under the circumstances in the discharging of Owner's or the Company's
servicing duties. All matters of public record that, at the time of origination
of any Mortgage loan originated by Owner, appeared in the related title
insurance policy/commitment shall be deemed to be known by Owner, and all
matters contained or disclosed in any Mortgage Loan Documents shall be deemed to
be known by Owner or the Company.
LIQUIDATION PROCEEDS means amounts, other than Insurance Proceeds and
Condemnation Proceeds, received by the Company (or the Owner in connection with
a Complex Defaulted Mortgage Loan) in connection with the liquidation of a
Defaulted Mortgage Loan through foreclosure sale or other disposition
(including, but not limited to, amounts received from MLCC with respect to a
Parent Power(R) Agreement or a Mortgage 100(SM) Pledge Agreement), other than
amounts received following the acquisition of an REO Property.
LOAN INFORMATION means, with respect to any Mortgage Loan, the
servicing, loan level and other information described in Exhibit 3 to the
Operations Guide.
LOAN-TO-VALUE RATIO means, with respect to any Mortgage Loan, as of any
date on which a determination thereof is made, the ratio on such date of the
outstanding principal balance of such Mortgage Loan to the Appraised Value of
the related Mortgaged Property.
LOSS means, in respect of any indemnification arising under this
Agreement, any and all losses, claims, damages, penalties, liabilities,
obligations, judgments, settlements, awards, demands, offsets, defenses,
counterclaims, actions or proceedings, reasonable out-of-pocket costs, expenses
and attorneys' fees of the Indemnified Party (including but not limited to, (a)
any reasonable costs, expenses and attorneys' fees incurred by the Indemnified
Party in enforcing such right of indemnification against any Indemnifying Party
or with respect to any appeal, and (b) interest at the Federal Funds Rate on any
amount for which the Indemnified Party is entitled to be indemnified from the
date the Indemnified Party notifies the Indemnifying Party of the expenditure or
such amounts until such amounts are paid by the Indemnifying Party; provided,
however, that in no event shall a "Loss" include a claim for consequential
damages, indirect damages or lost profits except when the Loss results from
fraud or willful misconduct of the Indemnifying Party.
MAXIMUM INTEREST RATE means, with respect to any FNMA Loan that is not
a Cendant Mortgage Loan, the average of the FNMA posted net 60-day commitment
rate for 30 year mortgages plus .75% for the forty (40) Business Days preceding
a Transfer. With respect to all other Mortgage Loans that are not Cendant
Mortgage Loans, the average of the FNMA posted net 60-day commitment rate for 30
year mortgages plus 1.75% for the forty (40) Business Days preceding a Transfer.
MLCC means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Corporation and its successors in
interest.
MONTHLY ADVANCE means the aggregate of the advances made by the Company
on any Portfolio Remittance Date pursuant to Section 6.03.
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MONTHLY PAYMENT means the scheduled monthly payment of principal and/or
interest on a Mortgage Loan which is payable by a Mortgagor from time to time
under the related Mortgage Note on every Due Date.
MORTGAGE 100(SM) LOAN means a Mortgage Loan secured by Additional
Collateral in the form of a security interest in the securities and other assets
held in a Trading Account and having a value, as of the date of origination of
such Mortgage Loan, at least equal to the related Original Additional Collateral
Requirement.
MORTGAGE 100(SM) PLEDGE AGREEMENT means, with respect to each Mortgage
100(SM) Loan, the Mortgage 100(SM) Pledge Agreement for Securities Account
between the related Mortgagor and MLCC pursuant to which such Mortgagor granted
a security interest in the securities and other assets held in the Trading
Account.
MORTGAGE INSTRUMENT means any deed of trust, security deed, mortgage,
land contracts, or any other instrument that constitutes a first lien on real
estate (or, in the case of a co-op loan, the applicable security agreement and
financing statements) securing payment by a Mortgagor of a Mortgage Note.
MORTGAGE LOAN means the first lien residential mortgage loans
identified on the Mortgage Loan Schedule, which Mortgage Loan Schedule may be
amended from time to time as Owner originates new mortgage loans that are the
subject of this Agreement.
MORTGAGE LOAN DOCUMENTS means the Mortgage Instruments, Mortgage Notes
and Assignments, and such other documents required to originate and service a
Mortgage Loan.
MORTGAGE LOAN REMITTANCE RATE means, with respect to each Mortgage
Loan, the related Mortgage Rate minus the related Servicing Fee Rate.
MORTGAGE LOAN SCHEDULE means the schedule of Mortgage Loans serviced
pursuant to this Agreement, which has been delivered to Owner, containing the
information set forth in EXHIBIT C attached hereto, which Mortgage Loan Schedule
may be amended from time to time as Owner originates new mortgage loans subject
to this Agreement.
MORTGAGE NOTE means the mortgage note, deed of trust note, security
deed note, or other form of promissory note executed by a Mortgagor and secured
by a Mortgage Instrument evidencing the indebtedness of the Mortgagor under a
Mortgage Loan.
MORTGAGE RATE means the per annum interest rate payable by the
Mortgagor on a Mortgage Loan according to the terms of the Mortgage Note.
MORTGAGED PROPERTY means any one- to four-family residence (at the time
of the origination of the applicable Mortgage Loan) that is encumbered by a
Mortgage Instrument, including all buildings and fixtures thereon and all
accessions thereto, and including installations of mechanical, electrical,
plumbing, heating and air conditioning systems located in or affixed to such
buildings, and all alterations, additions and replacements thereto. The term
"Mortgaged Property" shall include, to the extent the context shall permit or
require, a dwelling unit in a residential cooperative housing corporation.
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MORTGAGOR means any and all obligors under a Mortgage Note and/or
Mortgage Instrument.
OPERATIONS GUIDE means the Operations Guide attached hereto as EXHIBIT
D, as the same shall be amended from time to time by Owner.
ORIGINAL ADDITIONAL COLLATERAL REQUIREMENT means, with respect to any
Additional Collateral Mortgage Loan, generally 30 percent of the original
principal balance of such Mortgage Loan or such other percentage thereof as is
specified by MLCC in connection with the origination of such Additional
Collateral Mortgage Loan.
ORIGINATION AGREEMENT means the Mortgage Loan Purchase and Services
Agreement dated as of September 24, 1997 between Owner and PHH Mortgage Services
Corporation.
ORIGINATOR means, with respect to any Mortgage Loan, the person(s),
entity or entities that (a) took the relevant Mortgagor's loan application; (b)
processed the relevant Mortgagor's loan application; and/or (c) closed and/or
funded such Mortgage Loan.
OWNER means MLCC or any successor under this Agreement appointed as
herein provided.
OWNER INDEMNIFIED PARTIES shall have the meaning given in Section 12.02
hereof.
PARENT POWER(R) AGREEMENT means, 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 means, with respect
to a Parent Power(R) Mortgage Loan, an agreement between MLCC and a guarantor on
behalf of the Mortgagor under such Parent Power(R) Mortgage Loan pursuant to
which the guarantor guarantees the payment of certain losses under such Parent
Power(R) Mortgage Loan, authorizes MLCC to draw on the related Equity Access(R)
Agreement to fund such guaranty and has secured such Equity Access(R) Agreement
with a lien on residential real estate of the guarantor.
PARENT POWER(R) GUARANTY AND SECURITY AGREEMENT FOR SECURITIES ACCOUNT
means, with respect to a Parent Power(R) Mortgage Loan, an agreement between
MLCC 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 MLCC in certain marketable securities to collateralize such
guaranty.
PARENT POWER(R) MORTGAGE LOAN means a Mortgage Loan that at the time of
origination has a Loan-to-Value Ratio generally in excess of MLCC's maximum
acceptable Loan-to-Value Ratio for such Mortgage Loan and that is guaranteed by
a Parent Power(R) Agreement.
PASS-THROUGH TRANSFER means the sale or other transfer (which may
include one or more related, intermediate transfers in a whole loan format to
one or more Affiliates of the Owner) of some or all of the Mortgage Loans to a
Subsequent Purchaser that is a trust or another
9
Person as a part of a transaction (i) that involves (A) the sale of securities
evidencing an interest in such Mortgage Loans or (B) the public issuance or
private placement of securities evidencing an interest in such Mortgage Loans,
which securities also may evidence an interest in other mortgage loans, may be
issued through a REMIC and may, as a condition to their issuance, be rated
"AA/Aa" or higher by the Rating Agencies and (ii) for which the Company or the
Owner will act as the master servicer of the Mortgage Loans.
PERMISSION AGREEMENT means the Permission Agreement dated as of the
date hereof, between Owner and the Company.
PERSON means an individual, corporation, limited liability company,
partnership, joint venture, trust, or unincorporated organization, or a federal,
state, city, municipal, or foreign government, or an agency or political
subdivision thereof.
PLEDGE AGREEMENT means any Mortgage 100(SM) Pledge Agreement or Parent
Power(R) Guaranty and Security Agreement for Securities Account related to an
Additional Collateral Mortgage Loan.
PORTFOLIO MORTGAGE LOAN means any Mortgage Loan that, as of any given
date, the Owner does not intend to effect a Transfer of within the next one
hundred eighty (180) days. All such Mortgage Loans shall be identified by the
Owner in accordance with the terms of Section 7.03.
PORTFOLIO REMITTANCE DATE means the 18th day of any month or, if such
18th day is not a Business Day, the first Business Day immediately following
such 18th day.
PREPAYMENT INTEREST SHORTFALL means, with respect to any Portfolio
Remittance Date and any Portfolio Mortgage Loan or Special Portfolio Mortgage
Loan that was the subject of a Principal Prepayment during the related Principal
Prepayment Period, an amount, to be paid from the Company's own funds and not
reimbursable to the Company, equal to one month's interest at the related
Mortgage Loan Remittance Rate on the amount of such Principal Prepayment, less
the amount of interest (adjusted to such Mortgage Loan Remittance Rate) paid by
the Mortgagor in respect of such Principal Prepayment.
PRICING MATRIX means (i) on the date of this Agreement and each date
thereafter (subject to clause (ii) of this sentence), the Execution Date Pricing
Matrix and (ii) on and after the date on which any repricing in the Execution
Date Pricing Matrix first becomes effective, the pricing matrix as then in
effect.
PRINCIPAL PREPAYMENT means any payment or other recovery of principal
on a Mortgage Loan that (i) is received in advance of its scheduled Due Date,
including any prepayment penalty or premium thereon, and (ii) is not accompanied
by an amount of interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
PRINCIPAL PREPAYMENT PERIOD means, as to any Portfolio Remittance Date,
the calendar month preceding such Portfolio Remittance Date.
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PRIOR SERVICER means any Person that was a servicer or subservicer of
any Mortgage Loan before Owner became the servicer of the Mortgage Loan.
PURCHASE AND SALE AGREEMENT means the Servicing Rights Purchase and
Sale Agreement dated as of the date hereof, between the Owner, as seller, and
the Company, as purchaser.
RATING AGENCY means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., ▇▇▇▇▇'▇ Investors Service, Inc., Fitch Investors Service, L.P.
and Duff & ▇▇▇▇▇▇ Credit Rating Co. and, in connection with any Pass-Through
Transfer, any other nationally recognized statistical rating organization from
which the Owner or any of its Affiliates may seek a rating with respect to such
Pass-Through Transfer.
REMIC means a real estate mortgage investment conduit, as such term is
defined by the Internal Revenue Code of 1986, as amended.
REO DISPOSITION means the final sale by the Company of any REO
Property.
REO PROPERTY means any Mortgaged Property owned in fee simple by Owner
as a result of a foreclosure of a Mortgage Loan, or similar action.
RESPA means the Real Estate Settlement Procedures Act, 12 U.S.C Section
2601 et seq., and Regulation X, 24 C.F.R. Section 3500.21, thereunder, as the
foregoing may be amended from time to time.
SECURITIZED LOAN PRIMARY SERVICING AGREEMENT means the Securitized Loan
Primary Servicing Agreement dated as of the date hereof, between Owner, as
master servicer, and the Company, as primary servicer.
SERVICING ADVANCE means the outstanding moneys that have been advanced
by the Company from its funds in connection with its servicing of a Mortgage
Loan (including, but not limited to, taxes, ground rents, assessments, insurance
premiums, release fees, foreclosure and bankruptcy fees and expenses, and other
expenses) (i) that have been made by the Company in accordance with the terms
and provisions herein, (ii) that are recoverable through Liquidation Proceeds,
Insurance Proceeds and/or Condemnation Proceeds, or that are made at the
direction of the Owner or to preserve its security interest in the related
Mortgaged Properties and (iii) for which the Company has a right of
reimbursement from Mortgagors, Insurers, the Owner and/or Subsequent Purchaser,
or otherwise.
SERVICING FEE means with respect to any Mortgage Loan, the fee payable
monthly to the Company pursuant to Section 7.01 or 7.02, as applicable.
SERVICING FEE RATE means with respect to each Mortgage Loan, the rate
per annum set forth in the Pricing Matrix.
SERVICING RIGHTS has the meaning set forth in the Purchase and Sale
Agreement.
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SPECIAL MORTGAGE LOAN means any Mortgage Loan designated as a Special
Mortgage Loan by the Owner.
SPECIAL PORTFOLIO MORTGAGE LOAN means any Special Mortgage Loan that,
as of any given date, the Owner does not intend to effect a Transfer of within
the next one hundred eighty (180) days. All such Special Portfolio Mortgage
Loans shall be identified by the Owner in accordance with the terms of Section
7.03.
SPECIAL WAREHOUSE MORTGAGE LOAN means any Special Mortgage Loan
contemplated by the Owner to be available for sale to a Subsequent Purchaser or
to be designated as a Special Portfolio Mortgage Loan at some future date. All
Special Mortgage Loans shall be designated as Special Warehouse Mortgage Loans
unless the Owner indicates otherwise, as provided in Section 7.03.
SUBSEQUENT PURCHASER means any Person that acquires an interest in a
Mortgage Loan from the Owner.
SUBSERVICING AGREEMENT means the Loan Subservicing Agreement dated as
of the date hereof between Owner, as servicer, and the Company, as subservicer.
TRADING ACCOUNT means, with respect to any Additional Collateral
Mortgage Loan as to which a Pledge Agreement was made, the account in which the
securities and other assets that are subject to such Pledge Agreement are held.
TRANSACTION AGREEMENTS means this Agreement, the Purchase and Sale
Agreement, the Subservicing Agreement, the Permission Agreement and the
Securitized Loan Primary Servicing Agreement.
TRANSFER means a Pass-Through Transfer or a Whole Loan Transfer.
TRANSFER DATE means, with respect to any Mortgage Loan, the date on
which the Company begins physically servicing the Mortgage Loan. The initial
transfer date is anticipated to be April 3, 2000, but may be extended to such
later date as to which the parties may agree.
WAREHOUSE MORTGAGE LOAN means any Mortgage Loan contemplated by the
Owner to be available for sale to a Subsequent Purchaser (other than Special
Warehouse Mortgage Loans) or to be designated as a Portfolio Mortgage Loan at
some future date. All Mortgage Loans other than Special Mortgage Loans shall be
designated as Warehouse Mortgage Loans unless the Owner indicates otherwise, as
provided in Section 7.03.
WHOLE LOAN TRANSFER means the sale or other transfer to a Subsequent
Purchaser of some or all of the Mortgage Loans by the Owner in a whole loan
format for which the Company will act as the servicer of the Mortgage Loans
pursuant to a servicing agreement with substantially the same terms and
conditions as this Agreement or another agreement mutually acceptable to the
Owner and the Company.
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SECTION 1.02. GENERAL.
The terms defined herein include the plural as well as the singular and
the singular as well as the plural.
ARTICLE II
COMPANY TO SERVICE MORTGAGE LOANS
SECTION 2.01. COMPANY TO ACT AS SERVICER.
(a) Commencing on the applicable Transfer Date, the
Company shall service each Mortgage Loan in accordance with applicable law and
the terms and conditions of (i) the related Mortgage Loan Documents, (ii) this
Agreement, (iii) the Purchase and Sale Agreement, (iv) the Permission Agreement,
(v) to the extent not inconsistent with the foregoing, the Operations Guide, and
(vi) to the extent not inconsistent with the foregoing, the FNMA Servicing
Guide. The Operations Guide may be amended from time to time by Owner with the
Company's prior written consent (which shall not be unreasonably withheld),
without formal amendment of this Agreement. To the extent of a conflict between
the Operations Guide and this Agreement, this Agreement shall control. The
provisions of the Permission Agreement are hereby incorporated into this
Agreement.
(b) In the event the Company fails to service any ARM
Loan consistent with the servicing standards set forth in Section 2.01(a) above,
the Company shall notify the Owner within ten (10) Business Days of obtaining
Knowledge of such failure and shall take all appropriate actions required to
correct any such servicing deficiencies so that such loans are thereafter
serviced in compliance with the terms and provisions of this Agreement. The
Company shall be solely responsible for any costs and expenses required to
effectuate such remediation, except to the extent that any such servicing
deficiency was a continuation of a failure by Owner or any Prior Servicer to
service an ARM Loan in accordance with the Applicable Requirements (other than
the Company's continuation of such previous servicing practices after the
Company knew or should have known that such previous servicing practices
violated the Applicable Requirements). In addition to the foregoing, the Company
shall take such additional corrective action as may be directed by the Owner,
the cost of which shall be the sole responsibility of the Owner.
(c) The Company shall maintain an EDP containing all
information and programming necessary to service the Mortgage Loans in
accordance with Section 2.01(a) above. The Mortgage Loans shall be grouped on
the Company's EDP to reflect the Owner as the owner of the Mortgage Loans. In
addition, each Mortgage Loan shall be designated on the Company's EDP to reflect
whether such Mortgage Loan is a Portfolio Mortgage Loan, Special Portfolio
Mortgage Loan, Warehouse Mortgage Loan or Special Warehouse Mortgage Loan.
(d) The Company may not waive, modify or vary any term of
a Mortgage Note or Mortgage Instrument without the Owner's prior written
consent. Notwithstanding the foregoing, the Company may enter into a
modification agreement, in the Owner's name, modifying a Mortgage Note to
reamortize the monthly payments of principal and interest upon (i) receipt of a
prepayment equal to or greater than 20% of the then outstanding principal
balance of the Mortgage
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Note and (ii) the request of the Mortgagor. Within three (3) Business Days after
the complete execution of such modification agreement, the Company shall provide
the Owner with the original executed document. The Company shall comply with all
applicable federal, state and local legal and regulatory requirements (including
laws, statutes, rules, regulations and ordinances) in connection with the
modification of the Mortgage Note.
(e) Notwithstanding anything herein to the contrary, the
Company shall follow any reasonable directions given by the Owner with respect
to the servicing of the Mortgage Loans.
(f) With the exception of Ancillary Fees and any other
charges expressly permitted by the Mortgage Note, Mortgage Instrument, and
applicable law, the Company covenants and agrees that it will not, without the
prior written consent of the Owner, charge or collect from any Mortgagor, or
trustee under a deed of trust, any fees of any kind including, but not limited
to charges for amounts expended by the Company, regardless of the
characterization of the fee or charge.
(g) The Owner agrees to provide the Company on the first
Transfer Date, and shall, as necessary, promptly furnish the Company such
limited powers of attorney as are necessary and appropriate to assist the
Company to carry out its servicing and administrative responsibilities under
this Agreement. A form of such limited power of attorney is attached hereto as
EXHIBIT F. The Owner shall appoint a limited number of assistant vice presidents
(or more senior officers) of the Company, who are also "department heads" of the
Company, as "Limited Authorized Signatories" of the Owner, as set forth in
Owner's corporate resolution.
(h) The Company agrees that it shall supply Owner on a
daily basis (i) the Loan Information for each Mortgagor and (ii) aggregate loan
information on the Mortgage Loans, in accordance with the specific timing,
transfer, and other requirements set forth in the Operations Guide, in the
manner and in the time frame set forth therein.
(i) In connection with its duties hereunder, in the event
the Company requires an original of any document contained in a Mortgagor's file
to service a Mortgage Loan, it shall submit a written request to the Owner and
the Owner shall provide the original document to the Company within two (2)
Business Days after receipt of the written request, provided that (a) as to any
recorded document, the applicable recorder's office has returned the recorded
document to the Company or (b) as to the original title insurance policy, the
Company has received such policy. If Owner does not have the original Mortgage
Note, Owner shall work with the Company to fulfill the servicing responsibility
that gave rise to the Company's request for the original Mortgage Note. Upon the
written request of the Owner, the Company shall provide the Owner with copies of
any documents related to a Mortgage Loan, within two (2) Business Days of such
request.
(j) Notwithstanding anything to the contrary in this
Agreement, Owner shall service and administer all Additional Collateral, it
being understood and agreed that only Owner shall service and administer the
related securities accounts, lines of credit, Equity Access(R) Mortgages, and
guarantees with respect to Additional Collateral Agreements.
(k) In the event the Company receives a request to
convert an adjustable interest rate to a fixed rate (or an adjustable rate based
on one index to an adjustable rate based on a
14
different index) pursuant to the terms of the related Mortgage Note, the Company
shall process the request in accordance with the terms of the Mortgage Note and
continue to service the Mortgage Loan after conversion in accordance with the
terms of this Agreement.
(l) Any information, reports or other written
communication regarding a Mortgage Loan shall indicate whether it is a Portfolio
Mortgage Loan, Special Portfolio Mortgage Loan, Warehouse Mortgage Loan or
Special Warehouse Mortgage Loan.
SECTION 2.02. TITLE, MANAGEMENT AND DISPOSITION OF REO PROPERTY.
(a) If title to a Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Owner. Notwithstanding the foregoing, the
Company shall not acquire title to any Mortgaged Property, or proceed with the
management of any REO Property, for which the Company has Knowledge that such
Mortgaged Property or REO Property is affected by hazardous waste, but shall
promptly notify the Owner of such condition, and thereafter follow such
reasonable directions as the Owner may provide. The Company shall either itself,
or through an agent approved by the Owner (which approval shall not be
unreasonably withheld), manage, conserve, protect and operate each REO Property
(and may temporarily rent the same) in accordance with the Owner's direction.
(b) The Company shall deposit or cause to be deposited in
the applicable Custodial Funds Account, on a daily basis, all revenues received
with respect to each REO Property and shall be permitted to withdraw therefrom,
to the extent of the amount of such revenues on deposit therein, funds necessary
for the proper operation, management and maintenance of such REO Property,
including but not limited to the cost of maintaining any hazard insurance and
the fees of any managing agent acting on behalf of the Company.
(c) If the Company elects to dispose of an REO Property
without utilizing the services of an agent, the Company shall notify the Owner
of its receipt of any and all bona fide offers to purchase that REO Property.
Each such REO Disposition shall be carried out by the Company at such price, and
upon such terms and conditions, as the Owner shall approve in writing.
If the Company utilizes the services of an approved agent to dispose of
an REO Property, the Company shall provide the Owner with a copy of such agent's
marketing plan, which shall include, but not be limited to, (i) the marketing
time period, (ii) an estimate of the costs of any repairs or improvements, (iii)
the lowest acceptable sale price for the REO Property and (iv) other proposed
terms and conditions of sale. Within five (5) Business Days after receipt of any
such marketing plan, the Owner shall review the plan and notify the Company in
writing as to whether the terms and conditions thereof are acceptable to the
Owner. Notwithstanding the foregoing, the Owner's failure to provide such
written notification to the Company within such five (5) Business Day period
shall not be deemed acceptance of the marketing plan. If the terms, conditions
and lowest acceptable sale price set forth in the marketing plan are acceptable
to the Owner, the REO Disposition shall be carried out by the Company in
accordance with the terms thereof. If the Company receives a bona fide offer to
purchase an REO Property and would like to accept the offer, but the offer is
outside the parameters of the approved marketing plan, the Company shall provide
the Owner with written notification of the terms and conditions of the offer.
Within five (5) Business Days after receiving the terms and conditions of such
offer, the Owner shall review the
15
offer and notify the Company in writing as to whether such terms and conditions
are acceptable to the Owner. Notwithstanding the foregoing, the Owner's failure
to provide such written notification to the Company within such five (5)
Business Day period shall not be deemed acceptance of the offer.
The Company, upon an REO Disposition, shall be entitled to
reimbursement for any related unreimbursed Servicing Advances from proceeds
received in connection with such REO Disposition. If the proceeds from an REO
Disposition are insufficient to reimburse the Company for any related
unreimbursed Servicing Advances, the Company shall be entitled to withdraw any
such deficiency from amounts on deposit in the applicable Custodial Funds
Account. All proceeds from an REO Disposition, net of any reimbursement to the
Company as provided above, shall be remitted to the Owner within three (3)
Business Days following receipt thereof.
SECTION 2.03. DEFAULTED MORTGAGE LOANS
(a) The Company agrees to report monthly to the Owner all
Defaulted Mortgage Loans and all REO Properties serviced pursuant to this
Agreement. Such reports shall be provided on a monthly basis in the form set
forth on EXHIBIT A.
(b) The Owner reserves the right (but not the obligation)
to elect to administer certain default servicing activities relating to any
Defaulted Mortgage Loan or REO Property upon written notice to the Company
(hereinafter referred to as a "Complex Defaulted Mortgage Loan"). As to any REO
Property, the Company shall provide the Owner with written notification of the
related foreclosure sale within one (1) Business Day after the date of such
foreclosure sale. The Owner shall notify the Company within one (1) Business Day
after receiving such notification from the Company in the event the Owner elects
to administer default servicing activities relating to the REO Property.
Notwithstanding the foregoing, at any time during the period in which a Mortgage
Loan is delinquent, the Owner may provide written notice to the Company of the
Owner's election to administer default servicing activities in connection with
an REO Property after the foreclosure sale. If the Owner elects to assume such
activities as set forth above, the Owner shall not be obligated for any fees or
commissions due any agent previously retained by the Company.
In accordance with such notice from the Owner, the Company shall
forward to the Owner all relevant documentation relating to such Complex
Defaulted Mortgage Loan and shall comply with all reasonable transfer requests
of the Owner. Upon the transfer from the Company to the Owner of the relevant
files and documentation, the Owner shall commence default servicing activities
and shall report the status of such Complex Defaulted Mortgage Loans to the
Company on a monthly basis. Other than the specific default servicing activities
undertaken by the Owner in this Section 2.03, the Company shall be responsible
for complying with this Agreement, including but not limited to any reporting
and remittance of any funds received in connection with any Complex Defaulted
Mortgage Loan. Owner shall not be entitled to receive any compensation for such
services. In the event a Complex Defaulted Mortgage Loan reinstates or
Liquidation Proceeds are received by the Owner, (i) the Owner shall remit such
funds to the Company, (ii) the Company shall again be fully responsible for the
servicing for such Mortgage Loan, (iii) the Owner shall forward the related
mortgage file and all other relevant documentation to the Company, and (iv) the
Owner shall comply with all reasonable transfer requests of the Company.
16
(c) In connection with any expenses incurred by Owner for
any Complex Defaulted Mortgage Loan under Section 2.03(b), upon receipt of any
related invoices, the Owner shall forward such invoices to the Company for
payment in the ordinary course of business.
SECTION 2.04. OWNER'S RIGHT TO EXAMINE COMPANY RECORDS.
(a) The Company shall cooperate with the Owner, its
counsel, accountants, supervisory agents, examiners and other representatives in
providing reasonable access during normal business hours to examine and audit
any and all of the books, records, documentation or other information of the
Company related to the Mortgage Loans, which may be relevant to the performance
or observance by the Company of the terms, covenants or conditions of this
Agreement.
(b) The examination and audit rights and other rights to
access described in clause (a) above shall be afforded by the Company at its
offices without charge, upon reasonable request, and during normal business
hours or at such other times as may be reasonable under applicable
circumstances. The Company, at its expense, shall make available all customary,
reasonable office space, facilities, and equipment for the visiting party and
shall provide the visiting party with access to reasonable cooperation with its
officers and employees. The salaries, travel, subsistence and other related
expenses for Owner's representatives shall be borne by the Owner.
SECTION 2.05. LEGAL PROCEEDINGS INVOLVING THE COMPANY AND/OR THE MORTGAGE
LOANS.
(a) The Company shall not, without giving prior written
notice to the Owner, commence, defend, appear, or otherwise participate in any
foreclosure, condemnation, bankruptcy, or other legal proceedings in the name of
the Owner. The Owner shall have the right to control any such matters undertaken
by the Company at the Owner's request. The Company shall provide the Owner, on a
monthly basis, with such written reports as the Owner shall reasonably request,
regarding any legal proceedings.
(b) The Company shall commence all foreclosures,
bankruptcies and other legal proceedings in the name of the Owner unless
otherwise directed in writing by the Owner.
SECTION 2.06. MATERIAL CHANGES.
The Company shall promptly report to the Owner any change in its
business operations, financial condition, properties or assets that could have a
material adverse effect on the Company's ability to perform its obligations
hereunder. Events for which the Owner must receive notice include, but are not
limited to, the following:
(a) any merger or consolidation, any changes in the
Company's ownership whether directly or indirectly (including any change in
ownership of the Company's parent), or any significant reorganization;
(b) any material changes in management ordered or
required by a regulatory authority supervising or licensing the Company;
17
(c) the entry against the Company of a decree or order of
a court or agency or supervisory authority having jurisdiction for the
appointment of a trustee, conservator, receiver, liquidator, assignee, custodian
or sequestrator (or other similar official) in any federal or state bankruptcy,
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, if
such decree or order has remained in force undischarged or unstayed for a period
of sixty (60) days;
(d) the consent by the Company to the appointment of a
trustee, conservator, receiver, liquidator, assignee, custodian or sequestrator
(or other similar official) in, or commencement of a voluntary case under, any
federal or state bankruptcy, insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings;
(e) upon the Company's (A) admitting in writing its
inability to pay its debts generally as they become due, (B) filing a petition
to take advantage of any applicable insolvency or reorganization statute, (C)
making an assignment for the benefit of its creditors or (D) voluntarily
suspending payment of its obligations;
(f) entry of any court judgment or regulatory order in
which the Company is or may be required to pay a claim or claims that may have a
material adverse effect on the Company's financial condition;
(g) any admission by the Company to the commission of, or
any finding that the Company has committed, any violation of any law, regulation
or order in any proceeding or audit commenced by any governmental, or regulatory
authority, or any proceeding commenced in any court of law;
(h) the commencement of any class action law suits
against the Company; and
(i) the Company's entry into any agreement with a third
party that would result in any material change in the financial status or
ownership of the Company or any merger of the Company.
SECTION 2.07. COMPANY SHALL PROVIDE INFORMATION AS REASONABLY REQUIRED.
During the term of this Agreement, the Company shall furnish any
reports or documentation that the Owner may reasonably request. Reports
requested may include reports not specified or otherwise required by this
Agreement or reports required to comply with any regulations regarding any
supervisory agents or examiners of the Owner. All reports will be delivered in
accordance with the Owner's reasonable instructions and directions. The Company
agrees to execute and deliver all such instruments and take all such action as
the Owner, from time to time, may reasonably request in order to effectuate the
purpose and to carry out the terms of this Agreement. To the extent not required
by the Operations Guide or if not a standard report produced by the Company's
EDP, any set-up costs incurred by the Company for such reports requested by the
Owner shall be borne by the Owner.
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SECTION 2.08. COMPANY NOT TO RESIGN.
The Company shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Company and the Owner. No such
resignation shall become effective until a successor shall have assumed the
Company's responsibilities and obligations hereunder in the manner provided in
Section 13.01.
SECTION 2.09. TRAINING.
No later than March 3, 2000, Owner and the Company shall have completed
a training program for the Company's employees in the proper servicing of
interest-only ARM Loans subject to this Agreement. To assist the Owner in
conducting such training, the Company shall provide the Owner reasonable access
to the Company's facilities, employees and EDP and, if reasonably deemed
appropriate by the Owner, shall send the Company's employees to the Owner's
offices in Jacksonville, Florida to attend that portion, if any, of such
training conducted at such offices. The Owner and the Company shall bear their
own costs and expenses, including but not limited to salaries, travel,
subsistence and other related expenses when visiting the other party for
training. The party being visited shall, at its expense, make available all
customary, reasonable training facilities and equipment for the visiting party.
The Owner shall provide the training personnel and training materials.
SECTION 2.10. CUSTODIAL FUNDS ACCOUNTS AND ESCROW ACCOUNTS
The Company shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets. The Company shall create and maintain Custodial Funds Accounts
and Escrow Accounts for the deposit of all funds, except as otherwise provided
herein, received by the Company on the Mortgage Loans. The creation of the
Custodial Funds Accounts and Escrow Accounts shall be evidenced by the Company
by a certification in the form of Exhibit H-1 and H-2, respectively. A copy of
such certification shall be delivered to the Owner no later than three (3)
Business Days prior to the first Transfer Date.
SECTION 2.11. ASSUMPTION PROCESSING
Within three (3) Business Days of receipt by the Company of a request
by a Mortgagor to be released from liability for payment of a Mortgage Loan in
connection with an assumption of the related Mortgage Note, the Company shall
notify the Owner of such request. The Company shall thereafter cooperate with
the Owner, and follow all reasonable directions provided by the Owner. The Owner
shall be responsible for administering the request directly with the Mortgagor,
including, but not limited to the sending of all applicable disclosures required
by law, obtaining all necessary financial information from the proposed new
obligor, and obtaining any additional documentation and execution of documents.
Upon the completion of the assumption processing, the Owner shall provide the
Company with all necessary information to enable the Company to update its EDP.
19
SECTION 2.12. TRANSFER OF FUNDS TO THE CUSTODIAL FUNDS ACCOUNTS AND ESCROW
ACCOUNTS; PAYMENTS OF ADVANCES
The Custodial Funds Accounts and Escrow Accounts shall be funded by the
Owner and reconciled in accordance with Section 4.16 of the Purchase and Sale
Agreement. The Company shall pay the Owner any Advances (as such term is defined
in the Purchase and Sale Agreement), in accordance with Section 3.02(e) of the
Purchase and Sale Agreement.
ARTICLE III
OWNER REPRESENTATIONS AND WARRANTIES
In addition to representations and warranties, if any, made elsewhere
in this Agreement, Owner represents and warrants to the Company as of the date
hereof and each applicable Transfer Date, as follows:
SECTION 3.01. ORGANIZATION AND GOOD STANDING.
Owner is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware. Owner has in full force and
effect (without notice of possible suspension, revocation or impairment) all
required qualifications, permits, approvals, licenses, and registrations, or
exemptions therefrom, to conduct all activities in all jurisdictions in which
its activities with respect to the Mortgage Loans require it to be qualified or
licensed.
SECTION 3.02. AUTHORITY AND CAPACITY; ORDINARY COURSE.
Owner has all requisite corporate power, authority and capacity to
carry on its business as it is now being conducted, to execute and deliver this
Agreement, and to perform all of its obligations hereunder. Owner does not
believe, nor does it have any cause or reason to believe, that it cannot perform
each and every covenant contained in this Agreement.
SECTION 3.03. EFFECTIVE AGREEMENT.
The execution, delivery, and performance of this Agreement by Owner and
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate, shareholder, or other action by Owner;
this Agreement has been duly and validly executed and delivered by Owner; and
this Agreement is a valid and legally binding agreement of Owner, enforceable
against Owner in accordance with its respective terms, subject to bankruptcy,
insolvency and similar laws affecting generally the enforcement of creditors'
rights and the discretion of a court to grant specific performance of contracts.
SECTION 3.04. NO CONFLICT.
Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, nor compliance with its
respective terms and conditions shall (a) violate, conflict with, result in the
breach of, constitute a default under, be prohibited by, or require any
additional approval under any terms, conditions, or provisions of Owner's
Certificate of Incorporation or by-laws, or any other similar corporate or
organizational documents of
20
Owner; any mortgage, indenture, deed of trust, loan or credit agreement, or
other agreement or instrument to which Owner is now a party or by which it is
bound; or any law, ordinance, rule, regulation, order, judgment or decree of any
governmental authority applicable to Owner; or (b) result in the creation or
imposition of any lien, charge or encumbrance of any material nature upon any of
the properties or assets of Owner.
SECTION 3.05. APPROVALS AND COMPLIANCE.
Owner is approved and in good standing with each Insurer, and holds all
licenses, approvals, permits, and other authorizations, or exemptions therefrom,
required under Applicable Requirements to originate, if Owner was the
Originator, and to service the Mortgage Loans.
SECTION 3.06. INSURANCE.
Error and omissions and fidelity insurance coverage, in the amounts
required by FNMA, is in effect with respect to Owner and will be maintained with
respect to the related Mortgage Loans until such time as the Company is no
longer the servicer of the Mortgage Loans.
SECTION 3.07. LITIGATION.
There is no litigation, claim, demand, proceeding or governmental
investigation existing or pending, or to the Knowledge of Owner, threatened, nor
is there any order, injunction or decree outstanding against or relating to
Owner that could (i) have a material adverse effect upon the performance by
Owner of its obligations under this Agreement or (ii) to Owner's Knowledge,
result in any material loss or liability to the Company. Further, to Owner's
Knowledge, there is no meritorious basis for any such litigation, claim, demand,
proceeding, or governmental investigation.
SECTION 3.08. FINANCIAL CONDITION OF OWNER.
Neither Owner, its parent, nor any of its subsidiaries is in
bankruptcy, receivership or conservatorship. Owner has the requisite financial
resources and ability to meet its obligations under this Agreement, including,
but not limited to, any and all indemnification obligations.
ARTICLE IV
COMPANY REPRESENTATIONS AND WARRANTIES
In addition to representations and warranties, if any, made elsewhere
in this Agreement, the Company represents and warrants to the Owner as of the
date hereof and each applicable Transfer Date, as follows:
SECTION 4.01. ORGANIZATION AND GOOD STANDING.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of New Jersey. The Company has in full
force and effect (without notice of possible suspension, revocation or
impairment) all required qualifications, permits, approvals, licenses, and
registrations, or exemption therefrom, to conduct all activities in all
21
jurisdictions in which its activities with respect to the Mortgage Loans require
it to be qualified or licensed.
SECTION 4.02. AUTHORITY AND CAPACITY; ORDINARY COURSE.
The Company has all requisite corporate power, authority and capacity
to carry on its business as it is now being conducted, to execute and deliver
this Agreement, and to perform all of its obligations hereunder. The Company
does not believe, nor does it have any cause or reason to believe, that it
cannot perform each and every covenant contained in this Agreement.
SECTION 4.03. EFFECTIVE AGREEMENT.
The execution, delivery and performance of this Agreement by the
Company and consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate, shareholder or other action
by the Company; this Agreement has been duly and validly executed and delivered
by the Company; and this Agreement is a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its respective
terms, subject to bankruptcy, insolvency and similar laws affecting generally
the enforcement of creditors' rights and the discretion of a court to grant
specific performance of contracts.
SECTION 4.04. NO CONFLICT.
Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, nor compliance with their
respective terms and conditions shall (a) violate, conflict with, result in the
breach of, constitute a default under, be prohibited by or require any
additional approval under any terms, conditions or provisions of the Company's
articles of incorporation or by-laws or any other similar corporate or
organizational document of the Company; any mortgage, indenture, deed of trust,
loan or credit agreement or other agreement or instrument to which the Company
is now a party or by which it is bound; or any law, ordinance, rule, regulation,
order, judgment or decree of any governmental authority applicable to the
Company; or (b) result in the creation or imposition of any lien, charge or
encumbrance of any material nature upon any of the properties or assets of the
Company.
SECTION 4.05. APPROVALS AND COMPLIANCE.
The Company holds all licenses, approvals, permits and other
authorizations, or exemptions therefrom, required under Applicable Requirements
to assume responsibility for servicing the Mortgage Loans.
SECTION 4.06. LITIGATION.
There is no litigation, claim, demand, proceeding or governmental
investigation existing or pending, or to the Knowledge of the Company,
threatened, nor is there any order, injunction or decree outstanding against or
relating to the Company that could (i) have a material adverse effect upon the
performance by the Company of its obligations under this Agreement or (ii) to
the Company's Knowledge, result in any material loss or liability to Owner.
Further, to the
22
Company's Knowledge, there is no meritorious basis for any such litigation,
claim, demand, proceeding, or governmental investigation.
SECTION 4.07. AGENCY APPROVAL.
The Company has been approved by GNMA, FNMA and FHLMC and will remain
approved as an "eligible seller/servicer" of residential mortgage loans as
provided in GNMA, FNMA, or FHLMC guidelines and in good standing. The Company
has not received any notification from GNMA, FNMA or FHLMC that the Company is
not in compliance with the requirements of the approved "seller/servicer"
status. The Company is a mortgagee approved by the Secretary of HUD pursuant to
Section 203 and 211 of the National Housing Act. The Company has not received
any notification from HUD that the Company is not in compliance with the
requirements of the approved mortgagee status.
SECTION 4.08. SERVICING COMPLIANCE.
The servicing practices to be used by the Company under this Agreement
are, and shall remain, in all material respects in compliance with all
Applicable Requirements, including without limitation, all federal, state and
local laws, rules, all regulations and requirements in connection therewith, and
FNMA guidelines, as applicable. Notwithstanding the foregoing, the Company's
representations and warranties as to the proper servicing of interest-only ARM
loans shall be effective upon the fulfillment of the covenants set forth in
Section 2.09 of this Agreement.
SECTION 4.09. NO INQUIRIES.
The Company has not received written notice from or on behalf of FHA,
HUD, FDIC, FNMA, FHLMC or GNMA, advising the Company of its failure to comply
with applicable servicing or claims procedures, or resulted in a request for
repurchase of mortgage loans or indemnification in connection with any mortgage
loans.
SECTION 4.10. CONTINGENCY PLAN.
The Company has in place a contingency plan that will enable it to
perform its obligations under this Agreement in all material respects, at
another location within five (5) Business Days in the event its primary location
is rendered inoperative as a result of a natural or other disaster or emergency,
and once the Company relocates to its backup site, it shall make arrangements to
connect the Owner to the Company's backup EDP and provide continued service as
stated in this Agreement, provided that the Company has granted the Owner access
to its primary EDP.
SECTION 4.11. LICENSES AND APPROVALS.
(a) The Company maintains and shall maintain, in good
standing, all licenses and approvals necessary to service the Mortgage Loans and
maintains and shall at all times maintain the capital requirements imposed by
the licensing or approving entities having jurisdiction over the Company.
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(b) The Company has filed applications for all applicable
licenses and qualifications to do business and to service the Mortgage Loans in
the U.S. Virgin Islands.
SECTION 4.12. FIDELITY AND E&O INSURANCE.
The Company maintains and shall at all times maintain error and
omissions and fidelity insurance coverage of the type and in the amounts
required by FNMA.
SECTION 4.13. SUFFICIENCY OF SYSTEMS AND PERSONNEL.
The Company has, and shall at all times maintain during the term of
this Agreement, sufficient systems, including but not limited to the Company's
EDP, and trained and experienced personnel in place to perform its obligations
under this Agreement. Notwithstanding the foregoing, the Company's
representations and warranties as to the proper servicing of ARM Loans shall be
effective upon the fulfillment of the covenants set forth in Section 2.09 of
this Agreement.
SECTION 4.14. COMPLIANCE WITH LAWS.
For so long as, and to the extent that, the Company services the
Mortgage Loans, the Company will continue to comply with each applicable
federal, state, or local, law, statute, and ordinance, and any rule, regulation,
or order issued thereunder, pertaining to the subject matter of this Agreement,
including, but not limited to, usury, RESPA, Consumer Credit Reporting Act,
Equal Credit Opportunity Act, Federal Deposit Insurance Corporation Improvement
Act, Regulation B, Fair Credit Reporting Act, Fair Debt Collection Practices
Act, Fair Housing Act, Truth in Lending Act and Regulation Z, Flood Disaster
Protection Act of 1973, and any applicable regulations related thereto, and such
other fair housing, anti-redlining, equal credit opportunity, truth-in-lending,
real estate settlement procedures, fair credit reporting, and every other
prohibition against unlawful discrimination in residential mortgage lending or
governing consumer credit, and all state consumer credit statutes and
regulations, as amended. In the event the Owner has a reasonable good faith
belief in the Company's non-compliance with this Section 4.14 and upon Owner's
written request, the Company shall deliver to Owner reasonable evidence of
compliance with any of the requirements of this Section 4.14.
SECTION 4.15. FINANCIAL CONDITION OF THE COMPANY.
Neither the Company, its parent, nor any of its subsidiaries is in
bankruptcy, receivership or conservatorship. The Company has the requisite
financial resources and ability to meet its obligations under this Agreement,
including, but not limited to, any and all indemnification obligations.
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ARTICLE V
BOOKS AND RECORDS;
TRANSFER OF MORTGAGE LOANS
SECTION 5.01. BOOKS AND RECORDS.
The Company shall be responsible for maintaining, and shall maintain, a
complete set of records for the Mortgage Loans. The Company's books and records
shall clearly reflect the ownership of the Mortgage Loans by the Owner and
subsequent assignments and transfers of the Mortgage Loans pursuant to Section
5.02 hereof. All documents, records and correspondence, regardless of the media
in which they are stored or maintained, are property of the Owner, and the
Company shall hold the same in a fiduciary capacity for the Owner. The Company
may retain copies of all such documents, records and correspondence as may be
necessary to service the Mortgage Loans under this Agreement.
SECTION 5.02. TRANSFER OF MORTGAGE LOANS.
(a) The Company acknowledges that from time to time the
Owner intends to sell and/or assign to various Subsequent Purchasers all or a
portion of the Mortgage Loans that are subject to this Agreement, thereby
effecting one or more Whole Loan Transfers or Pass-Through Transfers of such
Mortgage Loans. The Company acknowledges that the Owner shall have the right to
sell and assign any or all of the Mortgage Loans, and the Company shall
recognize the related Subsequent Purchaser as the owner of such Mortgage Loans.
With respect to each Whole Loan Transfer and each Pass-Through Transfer, as
applicable, entered into by the Owner or any Affiliate of the Owner, the Company
agrees to assist the Owner in various capacities, and shall, among other things:
(i) cooperate fully and negotiate in good faith with the
Owner, any prospective Subsequent Purchaser, any Rating Agency or any
party to any agreement executed in connection with such Whole Loan
Transfer or Pass-Through Transfer with respect to all reasonable
requests and due diligence procedures and shall use its best efforts to
facilitate such Whole Loan Transfer or Pass-Through Transfer; provided,
however, that if the information provided by the Company to satisfy any
such request or to comply with any such procedure is not required by
any other Transaction Agreement, or is not contained in a standard
report produced by the Company's EDP, any reasonable out-of-pocket
expenses incurred by the Company to provide such information shall be
paid by the Owner. However, it is agreed that the Owner shall provide
notice to Company of a: (i) Whole Loan Transfer within five (5)
Business Days of the related trade date and (ii) Pass-Through Transfer
within five (5) Business Days of the submission of a loan pool to the
Rating Agencies;
(ii) execute as servicer or sub-servicer, as the case may
be, all applicable agreements to be executed (or amend existing
contracts, as necessary) in connection with such Whole Loan Transfer or
Pass-Through Transfer that govern the servicing and administration of
the Mortgage Loans (and any agreements and other documents incidental
thereto, including officer's certificates) as the Owner reasonably
requests. The
25
governing documents for Pass-Through Transfers shall contain provisions
customarily included in secondary mortgage market securitized
transactions with respect to like assets that provide for the public
issuance or private placement of securities that (a) evidence an
interest in mortgage loans like the Mortgage Loans and (b) one or more
classes of which may be rated "AA/Aa" or higher by the Rating Agencies,
provided that no such agreement or amendment materially increases the
existing duties of the Company under the Transaction Agreements;
(iii) restate as of the closing date for a Whole Loan
Transfer or Pass-Through Transfer the representations and warranties
set forth in the Purchase and Sale Agreement; provided, however, that
the Company may qualify any such representation or warranty to reflect
an event or circumstance that arose after the applicable Transfer Date
and that would cause such representation or warranty to be inaccurate,
so long as such event or circumstance is not a breach by the Company of
any term or condition of any Transaction Agreement.
(iv) deliver to the Owner or its Affiliates, at the
expense of the Owner, for inclusion in any prospectus, private
placement memorandum or other offering material or disclosure document
such written information regarding the Company or its Affiliates as
shall be reasonably requested by the Owner or its Affiliate (including
but not limited to its audited financial statements, and its mortgage
loan delinquency, foreclosure and loss experience) and indemnify and
hold harmless the Owner and any Affiliate of the Owner for any and all
liabilities, losses and expenses arising under the Securities Act of
1933, as amended, in connection with any material misstatement
contained in such written information or any omission of a material
fact the inclusion of which was necessary to make such written
information not misleading;
(v) deliver to the Owner, and to any Person designated by
the Owner, the Company's audited financial statements and such written
information provided by the Company or its Affiliates (including but
not limited to the information referred to in clause (iv) above and as
set forth in Section 11.02 of this Agreement) as shall be reasonably
requested by the Owner or its Affiliates;
(vi) deliver to the Owner, and to any Person designated by
the Owner, at the expense of the Owner, such opinions of counsel, if
any, as are customarily delivered by servicers in connection with Whole
Loan Transfers or Pass-Through Transfers;
(vii) provide, on an ongoing basis from information
obtained through its servicing of the Mortgage Loans, any information
necessary to enable the "tax matters person" for any REMIC in a
Pass-Through Transfer, including any master servicer or trustee acting
in such capacity, to perform its obligations in accordance with
applicable law and customary secondary mortgage market standards for
securitized transactions, one or more classes of securities issued in
which are rated "AA/Aa" or higher by the Rating Agencies; provided,
however, that if such information is not required by any other
Transaction Agreement, or is not contained in a standard report
produced by the Company's EDP, any set-up costs incurred by the Company
to provide such information shall be borne by the Owner.
26
(viii) maintain any applicable custodial account and escrow
account in accordance with the requirements of the Rating Agencies for
a securitized transaction, one or more classes of securities issued in
which are rated "AA/Aa" or higher, which requirements may include
maintaining such custodial account and escrow account with a depository
institution the long-term unsecured debt rating of which is rated
"AA/Aa" or higher by the Rating Agencies.
(b) Notwithstanding clause (ii) of Section 5.02(a), no
agreements, consents or modifications referred to therein shall contain any
provisions that reduce the Servicing Fee as to any Mortgage Loan or that affect
the calculation of the Servicing Fee as to any Mortgage Loan in a manner that is
materially adverse to the Company. All Mortgage Loans not sold or transferred
pursuant to a Whole Loan Transfer or Pass-Through Transfer shall be subject to
this Agreement and shall continue to be serviced and administered in accordance
with the terms hereof and with respect thereto this Agreement shall remain in
full force and effect.
ARTICLE VI
PAYMENTS TO THE OWNER
SECTION 6.01. PAID-IN-FULL REMITTANCES.
The Company shall determine, and shall accept, the amount required to
pay a Warehouse Mortgage Loan or Special Warehouse Mortgage Loan in full,
including interest to the related payoff date, and within five (5) Business Days
after the Company's receipt of such proceeds shall remit the same to the Owner.
The Company shall include a schedule of Mortgage Loans paid in full with such
remittance substantially in the form of the ALLTEL report P110 that provides
loan-level detail of the proceeds received from such remittances.
SECTION 6.02. MONTHLY REMITTANCES.
(a) On each Interim Remittance Date, the Company shall
remit to the Owner all collections of principal and interest received with
respect to the Warehouse Mortgage Loans and Special Warehouse Mortgage Loans
from the period beginning on the day after the previous Fiscal Month End and
ending on the sixteenth (16th) day of the calendar month of such remittance.
Such remittance shall not include payments relating to Warehouse Mortgage Loans
and Special Warehouse Mortgage Loans that were paid in accordance with Section
6.01.
(b) On each Fiscal Month Remittance Date, the Company
shall remit to the Owner all collections of principal and interest received with
respect to the Warehouse Mortgage Loans and Special Warehouse Mortgage Loans
from the period beginning on the seventeenth (17th) day of the calendar month
relating to such remittance and ending on the Fiscal Month End of such month.
Such remittance shall not include payments relating to Warehouse Mortgage Loans
and Special Warehouse Mortgage Loans that were paid in accordance with Section
6.01.
(c) On each Portfolio Remittance Date, the Company shall
distribute to the Owner with respect to all Portfolio Mortgage Loans and Special
Portfolio Mortgage Loans: (i) all amounts due on the Due Date immediately
preceding that Portfolio Remittance Date; plus (+) (ii)
27
any Principal Prepayments received during the related Principal Prepayment
Period; plus (+) (iii) any related Prepayment Interest Shortfalls.
SECTION 6.03. MONTHLY ADVANCES BY THE COMPANY.
(a) On each Portfolio Remittance Date the Company shall,
pursuant to Section 6.02(c), remit to the Owner the total of all scheduled
Monthly Payments due on the preceding Due Date for the Portfolio Mortgage Loans
and Special Portfolio Mortgage Loans whether or not such Monthly Payments were
collected from the Mortgagor. Any amounts due but uncollected shall be funded by
the Company as a Monthly Advance.
(b) With respect to any Portfolio Mortgage Loan or
Special Portfolio Mortgage Loan for which a Monthly Advance was made in
accordance with Section 6.03(a), the Company may reimburse itself for its
advances from Mortgagor collections that are subsequently deposited into the
applicable Custodial Funds Account.
(c) If the Company determines, in its reasonable
judgment, that any uncollected payment due from a Mortgagor that is due to be
paid to the Owner in accordance with Section 6.02(c) would not be recoverable
from Liquidation Proceeds or other payments or recoveries (including Insurance
Proceeds or Condemnation Proceeds) on the related Portfolio Mortgage Loan or
Special Portfolio Mortgage Loan, then the Company shall not advance the amount
considered to be nonrecoverable by the Company, and that amount shall therefore
not be remitted to the Owner until the Portfolio Mortgage Loan or Special
Portfolio Mortgage Loan is liquidated.
(d) With respect to any Portfolio Mortgage Loans or
Special Portfolio Mortgage Loans determined to be nonrecoverable and whose
Monthly Payments are omitted from the scheduled monthly remittance, the Company
shall deliver an officer's certificate to the Owner setting forth the basis of
such determination.
SECTION 6.04. STATEMENTS TO THE OWNER.
(a) With the exception of the P-185 (Report of Mortgage
Accruals as of Date), which is to be delivered daily, the reports listed on
EXHIBIT G will be delivered to Owner, as to all Mortgage Loans, within five (5)
Business Days after the "cut-off" date specified in EXHIBIT G. The forms of
these reports are contained in, and such reports will be generated by, the
Company's EDP, and the Company shall use its best efforts to deliver such
reports via electronic means to the Owner or its designee. The Company shall
provide the Owner separate reports for the Portfolio Mortgage Loans, Special
Portfolio Mortgage Loans, Warehouse Mortgage Loans and Special Warehouse
Mortgage Loans.
(b) The Company shall provide the Owner with such
information concerning the Mortgage Loans as is necessary for the Owner to
prepare its federal income tax return as the Owner may reasonably request from
time to time; provided, however, that if such information is not required by any
other Transaction Agreement, or is not contained in a standard report produced
by the Company's EDP, any set-up costs incurred by the Company to provide such
information shall be borne by the Owner.
28
SECTION 6.05. FORM OF PAYMENT; INTEREST ON LATE PAYMENTS.
(a) All distributions and remittances made to the Owner
pursuant to this Agreement shall be made by wire transfer of immediately
available funds to the account of the Owner at a bank or other entity having
appropriate facilities therefor or, if the Owner shall have so notified the
Company, by check mailed to the address of the Owner provided for in the
Purchase and Sale Agreement, or by any other method agreed upon by both parties.
(b) Without limiting the Owner's rights set forth in
Section 10.01 hereof, with respect to any distribution or remittance received by
the Owner on or after the second Business Day following the Business Day on
which such payment was due, the Company shall pay to the Owner interest on any
such late payment at an annual rate equal to the rate of interest as is publicly
announced from time to time at its principal office by Bank of America, N.A., as
its prime lending rate, adjusted as of the date of each change, plus one (1)
percentage point, but in no event greater than the maximum amount permitted by
applicable law. Such interest shall be paid by the Company to the Owner on the
date such late payment is made and shall cover the period commencing with the
day following such second Business Day and ending with the Business Day on which
such payment is made, both inclusive. Such interest shall be remitted along with
such late payment. The payment by the Company of any such interest shall not be
deemed an extension of time for payment or a waiver by the Owner of any Event of
Default by the Company.
ARTICLE VII
SERVICING COMPENSATION
SECTION 7.01. SERVICING COMPENSATION.
(a) Subject to the following paragraph, as compensation
for its services hereunder, the Company shall be entitled to a Servicing Fee
payable with respect to each Mortgage Loan. As to each Mortgage Loan, the
Servicing Fee shall be payable monthly from payments of interest on such
Mortgage Loan prior to the deposit of such payments into the applicable
Custodial Funds Account, shall accrue at the applicable Base Servicing Fee Rate,
and shall be computed on the basis of the same principal amount and for the same
period respecting which such interest payment was computed.
(b) The Servicing Fee for each Mortgage Loan shall be
payable solely from (i) the interest portion of the related Monthly Payment (to
the extent paid by the Mortgagor, but only if a full interest payment is
received), or (ii) from any payment of interest made with respect to the
Mortgage Loan from the proceeds of foreclosure or any judgment, writ of
attachment or levy against the Mortgagor or the Mortgagor's assets, or (iii)
from funds paid in connection with any prepayment in full, or (iv) from
Insurance Proceeds or Liquidation Proceeds.
(c) As additional compensation hereunder, the Company may
retain (i) all net interest earnings on balances maintained in the Custodial
Funds Accounts and Escrow Accounts and (ii) the Ancillary Fees.
(d) The Company's right to the Servicing Fee shall not be
transferred in whole or in part except in connection with any permitted transfer
of all the Company's obligations under
29
this Agreement. The Company shall be required to pay all expenses incurred by it
in connection with its servicing activities hereunder and shall not be entitled
to reimbursement therefor except as specifically provided for herein.
SECTION 7.02. ADJUSTMENTS TO SERVICING COMPENSATION.
The parties acknowledge that the sale or assignment of Mortgage Loans
by Owner to a Subsequent Purchaser by means of a Transfer pursuant to Section
5.02 may require the Owner to arrange to pay a Servicing Fee based on a rate
that is different from the Base Servicing Fee Rate.
The Company agrees to purchase the right to receive the Final Servicing
Fee Rate at the applicable price set forth in the "Final Servicing Fee Rate"
section of the Pricing Matrix. In the event that the Owner chooses to sell the
Company a Final Servicing Fee Rate that is less than the Gross Yield
Differential, then the difference between the Gross Yield Differential and the
Final Servicing Fee Rate shall be considered Excess Servicing and shall be paid
to the Owner on the remittance date specified in any servicing agreement with a
Subsequent Purchaser, to the extent it is received from the related Mortgagor.
To the extent that the Gross Yield Differential is less than the Final Servicing
Fee Rate, Owner agrees to purchase such difference from the Company pursuant to
the "downward adjustment" section of the Pricing Matrix. All differences in the
Base Servicing Fee Rate and the Final Servicing Fee Rate shall be settled in
connection with the Final Purchase Price Adjustment pursuant to Section 7.03 of
this Agreement.
SECTION 7.03. COMPUTATION AND PAYMENT OF FINAL PURCHASE PRICE ADJUSTMENT
Within five (5) Business Days following any Transfer, Owner shall
provide to Company a computation of Final Purchase Price Adjustment relating to
the Mortgage Loans that were the subject of such Transfer. The Final Purchase
Price Adjustment shall be computed on the basis of the outstanding principal
balance of the Mortgage Loan(s) as of the settlement date of the Transfer. The
Final Purchase Price Adjustment shall be paid by the owing party to the other
party by wire transfer of immediately available funds within five (5) Business
Days following receipt of the computation of Final Purchase Price Adjustment by
the Company.
From time to time, Owner shall review all Mortgage Loans being serviced
pursuant to this Agreement and shall designate which of them are Portfolio
Mortgage Loans and which of them are Special Portfolio Mortgage Loans. Owner
shall provide the Company with a list of all Portfolio Mortgage Loans and
Special Portfolio Mortgage Loans. Thereafter, Owner shall provide to Company a
computation of Final Purchase Price Adjustment relating to such Portfolio
Mortgage Loans and Special Portfolio Mortgage Loans. The Final Purchase Price
Adjustment shall be computed on the basis of the outstanding principal balance
of the respective Portfolio Mortgage Loans and Special Portfolio Mortgage Loans
as of the end of the calendar month contemplated above. The Final Purchase Price
Adjustment shall be paid by the owing party to the other party by wire transfer
of immediately available funds within twenty (20) Business Days following the
close of the applicable calendar month. In the event that after designation as a
Portfolio Mortgage Loan or Special Portfolio Mortgage Loan, Owner transfers such
Mortgage Loan in connection with a Transfer, the parties shall determine another
purchase price adjustment based upon the Pricing Matrix then in effect. In these
circumstances, only the pricing adjustments relating to the Final Servicing Fee
Rate and remittance cycle shall apply. Such
30
purchase price adjustment shall be computed on the basis of the outstanding
principal balance of such Mortgage Loan(s) as of the settlement date of the
Transfer and paid by the owing party to the other party by wire transfer of
immediately available funds within ten (10) Business Days following the
agreement on such adjustment.
ARTICLE VIII
SOLICITATION
SECTION 8.01. SOLICITATION
Without Owner's prior written consent, which may be withheld by the
Owner in its sole discretion, neither the Company nor any Affiliate shall
solicit any Mortgagor, or cause any Mortgagor to be solicited, for subordinate
financing of any Mortgage Loan or any investment or financial services or
products, including, without limitation, insurance and brokerage account
services. The Company (but not any of its Affiliates) may solicit Mortgagors for
prepayment of the related Mortgage Loans, but only if (i) the Company has
obtained the Owner's prior written consent, which will not be unreasonably
withheld, (ii) such solicitation is made in compliance with Applicable
Requirements and (iii) upon obtaining any positive responses to such
solicitation, the Company either (A) processes and closes the related Mortgage
Loans pursuant to the Origination Agreement (in the case of Mortgage Loans
subject to the Origination Agreement) or (B) forwards such responses to the
Owner for Owner to process and close (in the case of Mortgage Loans not subject
to the Origination Agreement). Any Servicing Rights resulting from Mortgage
Loans closed pursuant to subclause (A) or subclause (B) of clause (iii) of the
preceding sentence shall be sold to the Company pursuant to the Purchase and
Sale Agreement. Neither the Owner nor any of its Affiliates shall be prohibited
from soliciting any Mortgagor or causing any Mortgagor to be solicited for any
product or service now offered (or hereafter offered) by the Owner or any
Affiliate of the Owner, other than for prepayment of any Mortgage Loan. The
Company shall not prepare or disseminate, for compensation or otherwise, any
mailing lists relating to the Mortgagors, the Mortgage Loans, the Servicing
Rights, or otherwise, including any lists of Mortgagors, without the Owner's
prior written consent, which may be withheld by the Owner in its sole
discretion. The parties hereto nevertheless agree that (i) either the Company,
the Owner or their Affiliates may from time to time undertake promotions that
are directed to either their own general customer base or to the general public
at large and that do not target Mortgagors directly, including, without
limitation, newspaper, radio and television advertisements and mass mailing or
telephone solicitations and that (ii) offers by the Company, the Owner or their
Affiliates to refinance Mortgage Loans in response to, or as a result of,
contact initiated by the related Mortgagors or their representatives shall not
constitute solicitation.
31
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS
OF THE OWNER AND THE COMPANY
SECTION 9.01. TRANSACTION AGREEMENTS.
The obligations of the Owner and the Company are subject to the
following: (a) the execution, on or prior to February 29, 2000 (or such later
date as to which the Owner and the Company may hereafter agree), of the
Securitized Loan Primary Servicing Agreement, the Purchase and Sale Agreement
and the Subservicing Agreement and (b) as of the first Transfer Date, the
Transaction Agreements being in full force and effect and the Owner and the
Company being in compliance in all material respects with the covenants,
conditions, and agreements applicable to them under the Transaction Agreements.
ARTICLE X
DEFAULT
SECTION 10.01. EVENTS OF DEFAULT.
In case one or more of the following events (each, an "Event of
Default") shall occur and be continuing, that is to say:
(i) any failure by the Company to timely remit to the
Owner any payment required to be made under the terms of this
Agreement; or
(ii) any material breach on the part of the Company of any
other term, agreement, covenant, representation or warranty in this
Agreement that has not been cured after written notice and a thirty
(30) day curative period; or
(iii) there shall have occurred under any Transaction
Agreement a default of the Company; or
(iv) following entry against the Company of a decree or
order of a court or agency or supervisory authority having jurisdiction
for the appointment of a trustee, conservator, receiver, liquidator,
assignee, custodian or sequestrator (or other similar official) for the
Company in any federal or state bankruptcy, insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings, or
for the winding-up or liquidation of the Company's affairs, if such
decree or order has remained in force undischarged or unstayed for a
period of sixty (60) days, or
(v) upon consent by the Company to the appointment of a
trustee, conservator, receiver, liquidator, assignee, custodian or
sequestrator (or other similar official) in, or commencement of a
voluntary case under, any federal or state bankruptcy insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Company or of or relating to all or
substantially all of the Company's property; or
32
(vi) upon the Company's (A) admitting in writing its
inability to pay its debts generally as they become due, (B) filing a
petition to take advantage of any applicable insolvency or
reorganization statute, (C) making an assignment for the benefit of its
creditors or (D) voluntarily suspending payment of its obligations; or
(vii) the Company ceases to be eligible to sell mortgage
loans to or service mortgage loans for FNMA, FHLMC or GNMA or ceases to
be a HUD-approved mortgagee; or
(viii) the Company (a) merges or consolidates with or into
another Person, (b) sells substantially all of its assets or (c) sells
a controlling interest that results in a change in control of the
Company (other than any such change of control that results in the
Company being owned or controlled by an Affiliate of the Company, in
existence on the date of this Agreement); or
(ix) the Company fails to meet a "Service Standard" set
forth in Section I of the Operations Guide and the Company fails to
remedy such deficiency within the 90 day period set forth in Section
10.02(b);
then, and in each and every such case, so long as an Event of Default shall not
have been remedied, the Owner, by notice in writing to the Company, in addition
to whatever rights the Owner may have at law or in equity to damages, including
injunctive relief and specific performance, may terminate all the rights and
obligations of the Company under (a) this Agreement, without paying the Company
any termination fee, except as set forth in the following paragraph, and (b) any
other Transaction Agreement. (As to the 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.)
Notwithstanding the foregoing, the Owner may provide the Company a
written notice of its intent to terminate this Agreement as a result of an Event
of Default in Section 10.01(ix). Upon receipt of such notice, the Owner and the
Company shall, within fifteen (15) Business Days thereafter, each retain an
Arbitrator to determine the Fair Market Value for the Servicing Rights. The
parties shall cause their Arbitrators to make the Fair Market Value
determination within twenty (20) Business Days after being retained. Upon
receipt of notice of the Fair Market Value from the Arbitrators, the Owner may
elect to terminate this Agreement and, upon such termination shall, barring any
other Event of Default, pay the Company the Fair Market Value for the Servicing
Rights of the Mortgage Loans owned by the Company as of such date.
On or after the receipt by the Company of written notice of termination
of this Agreement, all authority and power of the Company under this Agreement,
whether with respect to the Mortgage Loans or otherwise, shall pass to and be
vested in the successor appointed pursuant to Section 13.01. Upon written
request from the Owner, the Company shall prepare, execute and deliver any and
all documents and other instruments, deliver to the successor all mortgage
files, and do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, including the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise, at the Company's sole expense. The Company agrees to cooperate with
the Owner and such successor in effecting the
33
termination of the Company's responsibilities and rights hereunder as provided
above, including, without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited by
the Company to the Custodial Funds Accounts or the Escrow Accounts or thereafter
received with respect to the Mortgage Loans.
SECTION 10.02. [REDACTED].
SECTION 10.03. WAIVER OF DEFAULTS.
The Owner, by notice in writing to the Company, may waive any default
by the Company in the performance of its obligations hereunder and its
consequences. Upon any such waiver of a past default, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon except
to the extent expressly so waived.
SECTION 10.04. TERMINATION WITHOUT CAUSE.
(a) The respective obligations and responsibilities of
the Company shall terminate without cause: (i) upon the later of the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan or the disposition of all REO Properties and the remittance of all
funds due hereunder, or (ii) by mutual consent of the Company and the Owner in
writing.
(b) In connection with the sharing of Loan Information,
the Purchase and Sale Agreement, Subservicing Agreement and Securitized Loan
Primary Servicing Agreement allow Owner to terminate any or all of the
Transaction Agreements, including but not limited to this Agreement, if (i) in
Owner's judgment, the Company's interpretation of the purported change in the
Applicable Requirements is adverse to Owner, (ii) the Owner disagrees and (iii)
the Owner and the Company are unable to resolve such disagreement or if the
parties agree that a change in the Applicable Requirements restricts in any way
the information the Company may share with the Owner. Notwithstanding the
foregoing, the Owner may provide the Company a written notice of its intent to
terminate this Agreement as a result of the foregoing. Upon receipt of such
notice, the Owner and the Company shall, within fifteen (15) Business Days
thereafter, each to retain an Arbitrator to determine the Fair Market Value for
the Servicing Rights. The parties shall cause their Arbitrators to make the Fair
Market Value determination within twenty (20) Business Days after being
retained. Upon receipt of the Fair Market Value from the Arbitrators, the Owner
may elect to terminate this Agreement upon at least ninety (90) days prior
written notice and, upon such termination shall, barring any other Event of
Default, pay the Company the Fair Market Value for the Servicing Rights of the
Mortgage Loans owned by the Company as of such date.
SECTION 10.05. EFFECT OF TERMINATION OF AGREEMENT.
(a) In the event this Agreement is terminated pursuant to
the provisions hereof, Article XII, Sections 8.01, 10.02, 15.02, 15.04 and 15.16
and this Section 10.05 shall remain in effect after such termination, and all
provisions relating to the allocation of responsibility for costs incurred by
the Owner and/or the Company shall remain in effect with respect to acts
occurring before such termination.
34
(b) If the Owner terminates this Agreement and any or all
of the other Transaction Agreements, the remedies for liquidated damages set
forth in Section 10.02 shall not apply as to any mortgage loan that the Company
continues to service.
ARTICLE XI
ANNUAL CERTIFICATIONS
SECTION 11.01. ANNUAL STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Owner on or before March 1 of each
year, beginning with March 1, 2001, a certificate signed by a senior vice
president or more senior officer stating that (i) a review of the activities of
the Company during the preceding calendar year and of performance under this
Agreement has been made under such officer's supervision, and (ii) to the best
of such officer's knowledge, based on such review, the Company has fulfilled all
of its obligations under this Agreement throughout such year in all material
respects, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof.
SECTION 11.02. ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' SERVICING
REPORTS.
(a) On or before March 1 of each year, beginning with
March 1, 2001, the Company at its expense shall cause a nationally recognized
firm of independent certified public accountants to furnish a report to the
Owner to the effect that (i) all Mortgage Loans serviced by the Company were
included in the total population of mortgage loans subject to selection for
testing in such firm's examination of certain documents and records, that such
examination was conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers and that such examination disclosed no
items of material noncompliance with the provisions of the Uniform Single
Attestation Program for Mortgage Bankers, except for such items of noncompliance
as shall be set forth in such report and (ii) such accounting firm (or another
nationally recognized firm) has reviewed the operations and control procedures
of the Company relative to the Company's EDP and has determined that such system
has been suitably designed to service the Mortgage Loans pursuant to this
Agreement.
(b) Prior to execution of this Agreement, the Company at
its expense shall have caused, and annually thereafter within 90 days after the
close of the Company's fiscal year, beginning with the close of the 1999 fiscal
year, the Company at its expense shall cause, a nationally recognized firm of
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish to the Owner audited financial
statements of the Company for the then most recently closed fiscal year,
together with an opinion thereon of such public accountants that either is
unqualified or contains only such qualifications as are acceptable to the Owner.
(c) On or before March 1 of each year, beginning March 1,
2001, the Company, at its expense, shall cause (i) the Company's EDP licensor
(which on the date of this Agreement is ALLTEL Information Services, Inc.) to
furnish its Statement of Auditing Standards ("SAS") 70 Report (Report on the
Processing of Transactions by Service Organizations) to the Owner and (ii) a
35
nationally recognized firm of independent certified public accountants to
furnish to the Owner a SAS 70 Report that has been prepared by such firm for the
Company's mortgage operations. Notwithstanding the foregoing, the SAS 70 report
described in clause (ii) of the preceding sentence will not be required to be
furnished if the financial statements of the Owner and the Company are audited
by the same firm of independent public accountants.
ARTICLE XII
INDEMNIFICATION
SECTION 12.01. INDEMNIFICATION OF THE COMPANY.
The Owner shall indemnify and hold the Company, its officers,
directors, employees and agents (the "Company Indemnified Parties") harmless
from, and will reimburse the Company Indemnified Parties for, any and all Losses
incurred by any of the Company Indemnified Parties to the extent that such
Losses result from, are caused by, or arise out of any one or more of the
following:
(a) Any material misrepresentations made by the Owner in
this Agreement or in any Schedule, Exhibit, or certificate furnished pursuant
hereto;
(b) Any material breach of any representations and
warranties of the Owner or the nonfulfillment of any term, covenant, condition,
or obligation of the Owner set forth in this Agreement or in any Schedule,
statement, Exhibit, or certificate furnished pursuant hereto, or any default or
failure to perform by the Owner hereunder;
(c) Any liabilities or obligations, contingent or
otherwise, of the Owner of any nature whatsoever relating to the Owner's
obligations under this Agreement, to the extent that any related Loss to the
Company is not increased by negligence, bad faith or willful misconduct on the
part of the Company;
(d) Owner's failure to service a Complex Defaulted
Mortgage Loan, as described in Section 2.03, in accordance with applicable law.
The indemnity provided in this Section 12.01 shall remain in full force
and effect regardless of any investigation made by the Company or its
representatives.
SECTION 12.02. INDEMNIFICATION OF THE OWNER.
The Company shall indemnify and hold the Owner, its officers,
directors, employees and agents (the "Owner Indemnified Parties") harmless from,
and will reimburse the Owner Indemnified Parties for, any and all Losses
incurred by any of the Owner Indemnified Parties to the extent that such Losses
result from, are caused by or arise out of any one or more of the following:
(a) Any material misrepresentations made by the Company
in this Agreement, or in any schedule, exhibit, or certificate furnished
pursuant hereto;
36
(b) Any material breach of any of the representations and
warranties of the Company or the nonfulfillment of any term, covenant, condition
or obligation of the Company set forth in this Agreement or in any schedule,
statement, exhibit, or certificate furnished pursuant hereto, or any default or
failure to perform by the Company hereunder;
(c) Any failure of the Company to comply with the terms
of any Applicable Requirements in connection with servicing the Mortgage Loans;
(d) Any liabilities or obligations, contingent or
otherwise, of the Company of any nature whatsoever relating to the Company's
obligations under this Agreement, to the extent that any related Loss to the
Owner is not increased by negligence, bad faith or willful misconduct on the
part of the Owner; or
(e) Any non-compliance with the terms of the powers of
attorney or Limited Authorized Signatories or the use thereof that results in a
Loss to the Owner.
The indemnity provided in this Section 12.02 shall remain in full force
and effect regardless of any investigation made by the Owner or its
representatives.
SECTION 12.03. NOTICE AND SETTLEMENT OF CLAIMS.
(a) In the event that either party to this Agreement
becomes aware of any material fact giving rise to any obligation of the other
party under this Article XII, including, but not limited to, any claim or any
litigation brought by a third party which may give rise to any such obligation,
such party shall promptly, but in no event later than seven (7) Business Days,
provide the other party with a notice describing the same. Failure to provide a
notice within such seven (7) Business Day period shall not relieve such other
party of its obligations under this Article XII, unless such failure materially
prejudices the rights or increases the liability of such other party, and then,
such other party's liability shall be reduced only by the amount that it
actually has been damaged by such failure.
(b) The indemnifying party (the "Indemnifying Party")
may, at its own cost and expense, assume defense of any claim, suit, action or
proceeding, provided that the counsel is satisfactory to the indemnified party
(the "Indemnified Party") in the exercise of its reasonable discretion. The
party not controlling the defense or prosecution of any such claim, suit, action
or proceeding may participate at its own cost and expense.
(c) Neither the Indemnifying Party nor the Indemnified
Party shall be entitled to settle, compromise, decline to appeal, or otherwise
dispose of any claim, suit, action or proceeding without the consent of the
other party (which consent shall not be unreasonably withheld or delayed).
(d) Following the discharge of the Indemnifying Party's
obligations under this Article XII, the Indemnified Party shall assign to the
Indemnifying Party any and all related claims against third parties. If the
Indemnifying Party fails to discharge its obligations under this Article XII,
the Indemnified Party shall be entitled (but not obligated) to pursue (as the
assignee of the Indemnifying Party) any and all claims against third parties
which the Indemnifying Party otherwise would have the right to pursue,
including, but not limited to, claims against loan correspondents.
37
Within fifteen (15) days after receipt, the Indemnified Party shall refund to
the Indemnifying Party the amounts of all recoveries the Indemnified Party
received from third parties with respect to any claim for which the Indemnified
Party was reimbursed for its Losses.
(e) Following the receipt of written notice from the
Indemnified Party of a demand for indemnification, the Indemnifying Party shall
seek to cure the problem giving rise to the demand, if possible, without any
actual or contingent liability of the Indemnified Party, and pay the amount for
which it is liable, or otherwise take the actions which it is required to take
within thirty (30) days or such lesser time as may be required by an Insurer or
third-party claimant.
ARTICLE XIII
SUCCESSOR TO THE COMPANY
SECTION 13.01. SUCCESSOR TO THE COMPANY.
(a) Upon termination of the Company's responsibilities
and duties under this Agreement, the Owner shall (i) directly service the
Mortgage Loans under this Agreement or (ii) appoint a successor.
(b) The Owner may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree. In the event that the Company's duties, responsibilities
and liabilities under this Agreement should be terminated, the Company shall
discharge such duties and responsibilities during the period from the date it
acquires knowledge of such termination until the effective date thereof with the
same degree of diligence and prudence which it is obligated to exercise under
this Agreement, and shall take no action whatsoever that might impair or
prejudice the rights or financial condition of its successor. The resignation or
removal of the Company shall not relieve the Company of any representations,
warranties, covenants or agreements made in connection herewith or affect the
remedies available to the Owner hereunder, it being understood and agreed that
such provisions shall be applicable to the Company notwithstanding any such
resignation or termination of the Company, or the termination of this Agreement.
(c) Any termination or resignation of the Company or
termination of this Agreement shall not affect any claims that the Owner may
have against the Company due to any failure of the Company to comply with this
Agreement prior to any such termination or resignation.
(d) The Company, in a timely and reasonable manner (but
in any event no later than two (2) Business Days after the effective date of any
termination or permitted resignation of the Company or termination of this
Agreement), shall deliver to the successor (i) the funds in the Custodial Funds
Accounts and Escrow Accounts and (ii) the mortgage files and related documents,
statements and computer files held by it hereunder, and the Company shall
account for all funds. The Company shall execute and deliver such instruments
and do such other things all as may reasonably be required to more fully and
definitely vest and confirm in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Company. The successor
shall make arrangements as it may deem appropriate to reimburse the Company for
amounts the Company actually expended pursuant to this Agreement that the
successor is entitled to retain
38
hereunder and that would otherwise have been reimbursable to the Company
pursuant to this Agreement but for the appointment of the Owner or new servicer.
ARTICLE XIV
ANTI-MONEY LAUNDERING
SECTION 14.01. COMPLIANCE.
(a) The Company shall at all times undertake and perform
the requirements set forth in Section IV of the Operations Guide as the same may
be amended from time to time (the "BSA Policies and Procedures"). The Company
shall comply with the BSA Policies and Procedures and shall take reasonable
steps to detect payments that are inconsistent with such policies and
procedures. In the event the Company retains the services of a third party
vendor to process the receipt of funds from Mortgagors (hereafter, a "Lock-Box
Vendor"), The Company shall first obtain the Owner's consent to the selection of
such Lock-Box Vendor, which consent shall not be unreasonably withheld. Further,
the Company shall provide the BSA Policies and Procedures to any such Lock-Box
Vendor and ensure that such Lock-Box Vendor complies with the same.
(b) The Company shall be responsible for assuring
compliance by the Owner with the Owner's obligations under the BSA by
identifying and reporting possible money laundering and other illegal activity
to the extent set forth in the BSA Policies and Procedures.
(c) Prior to the first Transfer Date, the Company shall
have: (i) appointed a suitable officer of the Company to be responsible for
compliance with the BSA Policies and Procedures; (ii) caused such officer and
any other appropriate persons to have participated in one or more training
sessions on anti-money laundering and bank secrecy act compliance which sessions
will be provided by the Owner or a third party vendor at Owner's expense; and
(iii) implemented policies, procedures and internal controls to undertake the
BSA Policies and Procedures and shall have provided the Owner with photocopies
of internal memoranda and other documents of the Company setting forth such
policies, procedures and internal controls.
(d) Failure of the Company to comply with the terms of
this Article XIV in all material respects, including without limitation the
failure of the Company to take any remedial action called for by the Owner as
described in subsection (f) below, shall constitute grounds for the Owner, in
its sole discretion, to terminate: (i) this Agreement pursuant to Section
10.01(ii) hereof; and (ii) any other Transaction Agreement(s).
(e) The Company shall indemnify the Owner for any
financial losses resulting from the Company's failure to comply with the BSA
Policies and Procedures.
(f) The Owner, upon reasonable notice, may audit and test
the Company's compliance with the provisions of the BSA Policies and Procedures.
Any such audit or test may be conducted by the Owner's internal auditors or
other employees or by an outside auditing firm. If the Owner detects weaknesses
in or exceptions to the Company's compliance with the BSA Policies and
Procedures, the Owner shall notify the Company of its findings, and the Company
shall immediately undertake the remedial action suggested by the Owner and shall
report to the Owner on the action taken. Failure on the part of the Company to
take such remedial action within 30 days
39
after receipt from the Owner of the notice described in the preceding sentence
shall constitute grounds for termination of this Agreement and any other
Transaction Agreements as set forth in subsection (d) above.
ARTICLE XV
MISCELLANEOUS
SECTION 15.01. SUPPLEMENTARY INFORMATION.
From time to time, the Owner shall furnish to the Company such
information supplementary to the information contained in the documents and
schedules delivered pursuant hereto which is reasonably available to the Owner
as the Company may reasonably request in writing and/or which may be necessary
to enable the Company to file any reports or respond to Mortgagor inquiries in
connection with the Mortgage Loans so long as furnishing such information does
not violate the Applicable Requirements.
SECTION 15.02. ACCESS TO INFORMATION; CONFIDENTIALITY.
(a) The Company shall, and shall cause the Company's
representatives, including but not limited to its counsel, accountants and other
representatives, and the Company's Affiliates to, hold in confidence and not
disclose to any third party without the Owner's prior written consent, all
information relating to the Owner received by the Company, the Company's
representatives and/or the Company's Affiliates in connection with the
transactions contemplated herein, other than information (i) received by the
Company, the Company's representatives or the Company's Affiliates on a
non-confidential basis from a third party having a right to make such
disclosure; (ii) that is or becomes generally available to the public (except as
a result of a disclosure in violation of this Agreement); or (iii) required to
be disclosed by law or regulatory or judicial process.
(b) The Owner shall, and shall cause the Owner's
representatives, including but not limited to its counsel, accountants and other
representatives, and the Owner's Affiliates to, hold in confidence and not
disclose to any third party without the Company's prior written consent, all
information relating to the Company received by the Owner and/or the Owner's
representatives in connection with the transactions contemplated herein, other
than information (i) received by the Owner or the Owner's representatives on a
non-confidential basis from a third party having a right to make such
disclosure; (ii) that is or becomes generally available to the public (except as
a result of a disclosure in violation of this Agreement); or (iii) is required
to be disclosed by law or regulatory or judicial process.
(c) The Company acknowledges that the Owner is licensed
as a mortgage lender/originator/servicer in numerous jurisdictions and that,
pursuant to such licenses and similar licenses, the Owner is requested from time
to time to make available to various governmental officials and examiners
various loan level information, documents, and similar items including, but not
limited to, certain "mortgage loan servicing" information. If the Owner is
required to produce any such mortgage loan servicing information, the Company
shall make all such information
40
available to the Owner in a timely manner at Owner's cost and expense, provided
that the Company's dissemination of such information does not violate the
Applicable Requirements.
(d) This Section 15.02 shall survive any termination of
this Agreement.
SECTION 15.03. FURTHER ASSURANCES.
(a) The Owner and the Company shall cooperate in good
faith to consummate the transactions contemplated by this Agreement.
(b) In order for the parties hereto to perform their
respective obligations hereunder, each party shall furnish to the other party
such reports, information or documentation supplementary to the information
contained in the documents and schedules delivered pursuant hereto and deliver
such reports, information or documentation as may reasonably be requested by
such party and as are reasonably normal and customary in the mortgage loan
servicing industry.
SECTION 15.04. SURVIVAL.
Except as otherwise provided herein, all representations, warranties,
covenants, indemnities and other agreements of the parties to this Agreement set
forth herein or in any exhibit, schedule or other document or certificate
delivered or to be delivered pursuant hereto shall survive each applicable
Transfer Date regarding the Mortgage Loans that are being serviced pursuant to
this Agreement
SECTION 15.05. GOVERNMENTAL AUTHORITIES; LAWS AND SEVERABILITY.
The terms and provisions of this Agreement are expressly made subject
to applicable federal and state statutes, laws, and rules and regulations
promulgated thereunder, as amended from time to time. Any rule, regulation or
administrative policy of any government agency having jurisdiction that relates
to the servicing of mortgage loans shall be deemed to be incorporated herein,
and shall supersede the terms of this Agreement, unless such incorporation shall
materially impair the contemplated benefits to be received by the parties
pursuant to this Agreement, in which event the parties shall renegotiate the
terms and conditions hereof to reflect a fair allocation of the economic
benefits contemplated hereby. In the event any provision of this Agreement is
deemed by a court of competent jurisdiction to be in violation of any of the
above, such provision shall be of no force or effect, and this Agreement shall
continue as though such superseded provision were not contained in this
Agreement.
SECTION 15.06. FORM OF PAYMENT TO BE MADE.
Unless otherwise provided herein or agreed to in writing by the
parties, all payments contemplated herein shall be made by wiring immediately
available funds to the account designated by the Owner or the Company, as
applicable.
SECTION 15.07. ASSIGNABILITY.
Neither the Owner nor the Company shall assign this Agreement, or
delegate any duty hereunder, without the prior written consent of the other
party. Notwithstanding the above
41
prohibition, this Agreement may be assigned by either party to such party's
Affiliate upon thirty (30) days' prior written notice to the other party hereto,
provided the Affiliate is an Affiliate as of the date hereof and has the ability
to perform the obligations of the Company hereunder.
SECTION 15.08. CERTAIN COSTS.
Unless otherwise set forth in this Agreement, each party shall bear
their respective costs in fulfilling their responsibilities herein.
SECTION 15.09. NOTICES.
All notices, requests, demands and other communications that are
required or permitted to be given under this Agreement shall be in writing and
shall be deemed given if delivered personally, transmitted by facsimile (and
telephonically confirmed), mailed by registered or certified mail, return
receipt requested, or sent by commercial overnight courier to the other party at
the following address:
If to the Company, to:
Cendant Mortgage Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
Ph: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to:
Cendant Mortgage Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Mail Stop LGL
▇▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
General Counsel
Ph: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Owner, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
Ph: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
42
With a Copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
General Counsel
Ph.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the Company or the Owner shall have specified in
writing to the other.
SECTION 15.10. ENTIRE AGREEMENT; CONSTRUCTION.
The Transaction Agreements constitute the entire agreement between the
parties with respect to the subject matter hereof. No amendments, modifications,
or supplements of this Agreement shall be binding unless executed in writing by
the parties hereto. Reference to sections, subsections, schedules, or exhibits
in this Agreement are to sections and subsections of, and schedules and exhibits
to, this Agreement. The schedules and exhibits are part of this Agreement.
Accounting terms not otherwise defined herein have the meanings assigned to them
in accordance with generally accepted accounting principles. The words "herein",
"hereby", "hereunder" and other words of similar import refer to this Agreement
as a whole and not to any particular provision. This Agreement and all documents
relating thereto, including, without limitation, (i) consents, waivers and
modifications that may hereafter be executed, (ii) documents received by any
party at the closing, and (iii) financial statements, certificates and other
information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business, and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
SECTION 15.11. BINDING EFFECT.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective permitted successors and permitted assigns.
SECTION 15.12. HEADINGS; PLURALS; GENDERS.
Section and Article headings are for reference purposes only and shall
not be deemed to have any substantive effect. In construing the words of this
Agreement, plural constructions will include the singular, and singular
constructions will include the plural. No significance will be attached to
whether a pronoun is masculine, feminine, or neuter.
43
SECTION 15.13. APPLICABLE LAW.
This Agreement shall be construed in accordance with and governed by
the substantive laws of the state of New York applicable to agreements made and
to be performed in the state of New York and the obligations, rights and
remedies of the parties hereto shall be determined in accordance with such laws.
SECTION 15.14. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same Agreement. The parties
hereto agree that the closing of this transaction may occur with the execution
of the Transaction Agreements by each party and the exchange of signatures by
telefax, with original, signed Transaction Agreements to follow by overnight
mail.
SECTION 15.15. WAIVERS.
No term or provision of this Agreement may be waived or modified unless
such waiver or modification is in writing and signed by the party against whom
such waiver or modification is sought to be enforced. The waiver by either party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any other or subsequent breach.
SECTION 15.16. PUBLICITY.
Except as required by applicable law, neither party hereto shall issue
a press release or similar announcement or communication relating to this
Agreement or the transactions contemplated herein using the other party's name
without such other party's prior written consent.
SECTION 15.17. NO THIRD PARTY BENEFICIARIES.
Except as expressly provided herein, nothing in this Agreement is
intended to confer any right, remedy, obligation or liability upon any Person
other than the parties hereto and their respective successors and permitted
assigns.
SECTION 15.18. ATTORNEY FEES, COSTS, ETC.
If any action at law or in equity, including an action for declaratory
relief, is brought to enforce or interpret the provisions of this Agreement, the
prevailing party shall be entitled to recover reasonable attorney fees and court
costs from the other party. Such fees may be set by the court in the trial of
such action or may be enforced in a separate action brought for that purpose.
Such fees shall be in addition to any other relief that may be awarded.
SECTION 15.19. MERGER OR CONSOLIDATION OF THE OWNER AND THE COMPANY.
(a) The Owner and the Company shall each keep in full
effect, their respective existences, rights and franchises as corporations in
the states of their incorporation except as permitted herein, and will obtain
and preserve their respective qualifications to do business as
44
foreign entities in each jurisdiction in which such qualification is or shall be
necessary to: (i) protect the validity and enforceability of this Agreement, or
of any of the Mortgage Loans; and/or (ii) to perform their respective duties
under this Agreement.
(b) Subject to the Owner's right to terminate this
Agreement upon the occurrence of an event described in Section 10.01(viii), any
entity into which the Owner or the Company may be merged or consolidated, or any
entity resulting from any merger, conversion or consolidation to which the Owner
or the Company shall be a party, or any entity succeeding to the business of the
Owner or the Company, shall be the successor of the Owner or the Company
hereunder, without the execution of filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving entity shall
be an institution whose business is the origination or servicing of mortgage
loans, unless otherwise consented to by the Company or the Owner, as applicable,
and shall be qualified to service mortgage loans on behalf of FNMA.
45
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT CORPORATION and CENDANT
MORTGAGE CORPORATION have caused this Portfolio Servicing Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT CORPORATION
By:_______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
CENDANT MORTGAGE CORPORATION
By:_______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
EXHIBIT A
Form of Report Concerning Defaulted Mortgage Loans and REO Properties
[INTENTIONALLY OMITTED]
EXHIBIT B
Owner's Fiscal Month Ends Through December 2000
January February 4, 2000
February March 3, 2000
March March 31, 2000
April May 5, 2000
May June 2, 2000
June June 30, 2000
July August 4, 2000
August September 1, 2000
September September 29, 2000
October November 3, 2000
November December 1, 2000
December December 29, 2000
EXHIBIT C
Mortgage Loan Schedule
Loan Number
Mortgagor Name
Investor Identification Number
Investor Category
Unpaid Principal Balance
EXHIBIT D
Operations Guide
[INTENTIONALLY OMITTED]
EXHIBIT E
Execution Date Pricing Matrix
[INTENTIONALLY OMITTED]
EXHIBIT F
Form of Limited Power of Attorney
RECORD AND RETURN TO:
Cendant Mortgage Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Manager, _________Department
KNOW ALL MEN BY THESE PRESENTS, that ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Corporation ("MLCC"),
a Delaware corporation, having its principal place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, hereby constitutes and appoints Cendant
Mortgage Corporation ("Cendant"), a New Jersey corporation, having offices at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, by and through its officers,
its true and lawful Attorney-in-Fact, in its name, place and stead and for its
benefit, in connection with mortgage loans serviced or subserviced by Cendant on
behalf of MLCC pursuant to a certain Portfolio Servicing Agreement or Loan
Subservicing Agreement, each dated as of January 28, 2000, for the purposes of
performing all acts and executing all documents in the name of MLCC necessary
and incidental to servicing said loans, including but not limited to:
(1) Foreclosing delinquent loans or discontinuing such foreclosure
proceedings, including but not limited to the execution of notices of default,
notices of sale, assignments of bids, and assignments of deficiency judgments;
appearing in and prosecuting bankruptcy proceedings;
(2) Selling, transferring or otherwise disposing of real property acquired
through foreclosure or otherwise, including but not limited to executing all
contracts, agreements, deeds, assignments or other instruments necessary to
effect such sale, transfer or disposition, and receiving proceeds and endorsing
checks made payable to the order of MLCC from such proceedings;
(3) Preparing, executing and delivering satisfactions, cancellations,
discharges, lost note instruments, or full or partial releases of lien,
subordination agreements, modification agreements, assumption agreements, and
substitutions of trustees under deeds of trust;
(4) Endorsing promissory notes and executing assignments of mortgages,
deeds of trust, deeds to secure debt and other security instruments securing
said promissory notes in connection with loans for which Cendant has received
full payment of all outstanding amounts due on behalf of MLCC;
(5) Endorsing insurance proceeds checks and mortgage payment checks to the
order of Cendant; and
(6) Any and all such other acts of any kind and nature whatsoever that are
necessary and prudent to service the loans.
MLCC further grants to Cendant full power and authority to do and perform all
acts necessary for Cendant to carry into effect the power or powers granted by
or under this Limited Power of Attorney as fully as MLCC might or could do with
the same validity as if all and every such act had been herein particularly
stated, expressed and especially provided for, and hereby ratifies and confirms
all that Cendant shall lawfully do by virtue of the powers and authority granted
and contemplated hereby. This Limited Power of Attorney shall remain in full
force and effect until ___________________.
Third parties without actual notice may rely upon the exercise of the power
granted under this Limited Power of Attorney, and may be satisfied that this
Limited Power of Attorney has not been revoked by MLCC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT CORPORATION
By:_______________________________________
Name:
Title:
ATTEST:_____________________________
Name: (Corporate Seal)
Title: Assistant Secretary
STATE OF FLORIDA
COUNTY OF ▇▇▇▇▇
On this ___ day of _______ , 2000, before me, the undersigned, a Notary
Public in and for said county and state, personally appeared
_____________________________ and ____________________, personally known to me
to be the persons who executed the within instrument as ________________and
Assistant Secretary, respectively, on behalf of the corporation therein named,
and they duly severally acknowledged that said instrument is the act and deed of
said corporation, and that they, being authorized to do so, executed and
delivered said instrument and affixed the corporate seal thereto for the
purposes therein contained.
Witness my hand and official seal.
_____________________________________
Notary Public, State of Florida
My Commission Expires:_______________
Prepared By:
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT G
Reports to be Submitted Pursuant to Section 6.03
1. Interim Remittance Date Reports for Warehouse Mortgage Loans ("cut-off"
date being the 16th day of the related calendar month)
Report Number Description of Report
P-181 Trial Balance by Investor, by Category, by Investor Loan
Number
P-4DL Investor List of Delinquent Accounts by Investor Loan #,
w/Delinquent Collection Notes
S-210 Remittance Report
S-212 Paid-In-Advance Remittance Report
2. Fiscal Month-End Remittance Date Reports for Warehouse Mortgage Loans
("cut-off" date detailed in Exhibit B)
Report Number Description of Report
P-139 Statement of Mortgage Accounts by Investor
P-4DL Investor List of Delinquent Accounts by Investor Loan #,
w/Delinquent Collection Notes
S-210 Remittance Report
S-212 Paid-In-Advance Remittance Report
S-213 Summary of Curtailments Made Remittance Report
S-214 Summary of Paid-In-Full Remittance Report
S-215 Consolidation of Remittance Reports
S-237 Report of Loans Delinquent
S-238 Report of Loans Paid-In-Advance
S-263 Loans Added to Single Debit
S-264 Loans Removed from Single Debit
T-303 Single Debit Reconciliation
T-365 Summary of Remittance Reports for Single Debit
3. Portfolio Remittance Date for Portfolio Mortgage Loans ("cut-off" date
on calendar month end)
Report Number Description of Report
P-139 Statement of Mortgage Accounts by Investor
P-4DL Investor List of Delinquent Accounts by Investor Loan #,
w/Delinquent Collection Notes
S-210 Remittance Report
S-212 Paid-In-Advance Remittance Report
S-213 Summary of Curtailments Made Remittance Report
S-214 Summary of Paid-In-Full Remittance Report
S-215 Consolidation of Remittance Reports
S-237 Report of Loans Delinquent
S-238 Report of Loans Paid-In-Advance
EXHIBIT H-1
Custodial Funds Account Certification
[Month]______, [Year]
Cendant Mortgage Corporation hereby certifies that it has established
the accounts described below as Custodial Funds Accounts pursuant to Section
2.10 of the Portfolio Servicing Agreement, dated as of January 28, 2000, between
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Corporation and Cendant Mortgage Corporation.
Title of each account: "Cendant Mortgage Corporation, in trust for ▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Corporation, Investor Number _________"
Account Numbers: ________________________
________________________
________________________
________________________
Name and Address of office or branch of the bank at which each account is
maintained:
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
CENDANT MORTGAGE CORPORATION
By:___________________________________
Name:_________________________________
Title: _______________________________
EXHIBIT H-2
Escrow Account Certification
[Month] ____, [Year]
Cendant Mortgage Corporation hereby certifies that it has established
the account described below as the Escrow Account pursuant to Section 2.10 of
the Portfolio Servicing Agreement, dated as of January 28, 2000, between ▇▇▇▇▇▇▇
▇▇▇▇▇ Credit Corporation and Cendant Mortgage Corporation.
Title of Account: "Cendant Mortgage Corporation, in trust for ▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Corporation and various mortgagors, Investor
Number ________"
Account Number: ________________________
Name and Address of office or branch of the bank at which the account is
maintained:
_________________________________________________________
_________________________________________________________
_________________________________________________________
CENDANT MORTGAGE CORPORATION
By:_________________________________
Name:_______________________________
Title: _____________________________