This Servicing Agreement, made as of this 1st day of March, 1999, by
and between FREMONT INVESTMENT & LOAN, a California industrial loan company,
having an office at 000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx, as initial
owner and master servicer (the "Owner" or the "Master Server") and FAIRBANKS
CAPITAL CORP., a Utah corporation, having an office at 0000 Xxxxx Xxxx Xxxxxx,
Xxxx Xxxx Xxxx, Xxxx 00000-0000 (the "Servicer"), recites and provides as
follows:
R E C I T A L S
WHEREAS, Owner and Servicer executed and delivered that certain
Agreement Regarding Standard Servicing Terms dated as of March 1, 1999 (the
"Standard Terms Agreement");
WHEREAS, the Standard Terms Agreement sets forth certain standard
provisions for the servicing of residential mortgage loans by Servicer on behalf
of Owner; and
WHEREAS, Owner and Servicer desire that Servicer service the mortgage
loans described on the attached Mortgage Loan Schedule pursuant to the terms
hereof and the terms of the Standard Terms Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations and warranties hereinafter set forth and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Owner and the Servicer agree as follows:
Section 1. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the meanings specified in the Standard Terms
Agreement. The following terms shall have the meanings set forth below:
"Custodian" First Union National Bank
"Custodial Agreement" That certain
Custodial Agreement between
the Custodian, Servicer, the
Issuer and Owner dated as of
even date herewith.
"Servicing Commencement Date" April 12, 1999.
Section 2. Duties and Responsibilities of the Servicer. Servicer agrees
to service the Mortgage Loans on behalf of Owner, its successors and assigns, in
accordance with the provisions of this Servicing Agreement and the Standard
Terms Agreement.
Section 3. Term of Mortgage Loan Servicing Agreement. The duties,
responsibilities, and obligations to be performed and carried out by Servicer
under this Servicing Agreement shall commence upon the execution of this
Servicing Agreement and shall terminate (a) as to any Mortgage Loan upon the
distribution of the final payment or Liquidation Proceeds on the last Mortgage
Loan or REO Property subject to this Servicing Agreement and (b) as to all the
Mortgage Loans (x) in accordance with the Standard Terms Agreement, or (y) if
required in connection with a securitization financing, the Servicer hereby
covenants and agrees to act as servicer under this Servicing Agreement for an
initial term commencing on the Servicing Commencement Date and expiring on June
30, 1999 (the "Initial Term"), thereafter, the Initial Term shall be extendible
by the Financial Security Assurance Inc. as securities insurer (the "Securities
Insurer") written notice (each, a "Servicer Renewal Notice," of the Securities
Insurer (or the Indenture Trustee if a Securities Insurer Event of Default is
then occurring) for successive three month terms. The Master Servicer may, with
the consent of the Securities Insurer, appoint a replacement Service, which
shall be an eligible Service approved by the Securities Insurer. The Servicer
hereby agrees that, as of the date hereof and upon its receipt of any Servicer
Renewal Notice, the Servicer shall be bound for the duration of the Initial Term
and the term covered by any such Servicer Renewal Notice to act as the Servicer,
subject to and in accordance with the other provisions of this Servicing
Agreement. The Servicer agrees that if, as of the last day of the calendar month
preceding the last day of any such servicing term, the Servicer shall not have
received a Servicer Renewal Notice, the Servicer shall, within five days
thereafter, give written notice of such non-receipt to the Master Servicer, the
Note Insurer and the Indenture Trustee. The failure of the Securities Insurer or
any other party to deliver a Servicer Renewable Notice by the end of any such
three-month term shall result in the automatic termination of the Servicer.
Section 4. Compensation. In consideration of the services rendered
under this Servicing Agreement, the Servicer shall be entitled to such fees as
are provided for in the Standard Terms Agreement.
Section 5. Additional Servicer Events of Default. In addition to the
Events of Default set forth in Section 9.4 of the Standard Terms Agreement, the
following shall be additional Events of Default hereunder:
(i) the most recent Six-Month Average Delinquency
(including Foreclosure Property and real estate owned) exceeds
15.00%; and
(ii) cumulative Realized Losses as a percentage of
the Original Pool Principal Balance equal or exceed the
following percentages based on the month of determination
after the Closing Date:
Month of Cumulative
Determination Realized Losses
------------- ---------------
0-12 1.25%
13-24 2.00%
25-36 3.15%
37-48 3.85%
49+ 4.35%
(iii) cumulative Realized Losses as a percentage of
the Original Pool Principal Balance at the end of any 12 month
period is greater than or equal to 1.75% of such percentage as
of the beginning of such 12 month period.
Section 6. Standard Terms. Servicer acknowledges that the Standard
Terms Agreement prescribes additional terms and conditions under which Servicer
is to service the Mortgage Loans. The terms of the Standard Terms Agreement are
incorporated herein by reference and are made a part hereof. Servicer agrees to
perform and observe the duties, responsibilities and obligations that are to be
performed and observed by Servicer under the Standard Terms Agreement as said
Agreement may be amended from time to time, and further agrees that the Standard
Terms Agreement, as amended or supplemented, is and shall be a part of this
Servicing Agreement to the same extent as if set forth herein in full. If any
provision of the Standard Terms Agreement conflicts with any provision of this
Servicing Agreement, the terms of this Servicing Agreement shall govern.
Section 7. Representations and Warranties. Servicer and Owner hereby
remake the representations and warranties contained in the Standard Terms
Agreement with respect to this Servicing Agreement.
Section 8. Assignment and Delegation of Duties by Servicer. Except as
otherwise expressly provided in the Standard Terms Agreement, Servicer shall not
assign or transfer any of its duties, rights, benefits or privileges under this
Servicing Agreement.
Section 9. Assignment by Owner. Except as provided in the Standard
Terms Agreement, Servicer agrees that Owner, its successors and assigns, may at
any time, without the consent of Servicer, assign and transfer its right, title
and interest under this Servicing Agreement to any other Person. The parties
hereto acknowledge that the Owner will assign its rights under this Servicing
Agreement to Fremont Home Loan Owner Trust 1999-1, a Delaware business trust, as
the issuer in a securitization financing on or about March 23, 1999 and that
simultaneously therewith such issuer shall assign its rights to First Union
National Bank as indenture trustee under an indenture dated as of March 1, 1999
between such issuer and the indenture trustee. All representations, warranties
and covenants in the Standard Terms Agreement shall inure to the benefit of
First Union National Bank, as indenture trustee, Financial Security Assurance
Inc., as Securities Insurer, and the noteholders under the securitization
financing. Financial Security Assurance Inc., as Securities Insurer, shall be
vested (with the authority to make all decisions of the Owner during the term of
the securitization financing so long as note Insurer event of default has
occurred and is continuing.
Section 10. Notices. All notices under this Servicing Agreement shall
be made as provided in the Standard Terms Agreement.
Section 11. Severability. Each part of this Servicing Agreement is
intended to be severable. If any term, covenant, condition or provision hereof
is unlawful, invalid, or unenforceable for any reason whatsoever, and such
illegality, invalidity, or unenforceability does not affect the remaining parts
of this Servicing Agreement, then all such remaining parts hereof shall be valid
and enforceable and have full force and effect as if the invalid or
unenforceable part had not been included.
Section 12. Rights Cumulative; Waivers. The rights of each of the
parties under this Servicing Agreement are cumulative and may be exercised as
often as any party considers appropriate. The rights of each of the parties
hereunder shall not be capable of being waived or varied otherwise than by an
express waiver or variation in writing. Any failure to exercise or any delay in
exercising any of such rights shall not operate as a waiver or variation of that
or any other such right. Any defective or partial exercise of any of such rights
shall not preclude any other or further exercise of that or any other such
right. No act or course of conduct or negotiation on the part of any party shall
in any way preclude such party from exercising any such right or constitute a
suspension or any variation of any such right.
Section 13. Headings. The headings of the Sections contained in this
Servicing Agreement are inserted for convenience only and shall not affect the
meaning or interpretation of this Servicing Agreement or any provision hereof.
Section 14. Construction. Unless the context otherwise requires,
singular nouns and pronouns, when used herein, shall be deemed to include the
plural of such noun or pronoun and pronouns of one gender shall be deemed to
include the equivalent pronoun of the other gender.
Section 15. Assignment. This Servicing Agreement and the terms,
covenants, conditions, provisions, obligations, undertakings, rights and
benefits hereof, including any Exhibits and Schedules hereto, shall be binding
upon, and shall inure to the benefit of, the undersigned parties and their
respective heirs, executors, administrators, representatives, successors, and
assigns.
Section 16. Counterparts. This Servicing Agreement may be executed in
any number of counterparts, each of which shall constitute one and the same
instrument, and either party hereto may execute this Servicing Agreement by
signing any such counterpart.
Section 17. Governing Law. This Servicing Agreement shall be construed,
and the rights and obligations of the Servicer and the Owner hereunder
determined, in accordance with the laws of the State of New York determined
without regard to its laws concerning conflicts of laws.
Section 18. Third Party Beneficiary. The parties hereto agree and
acknowledge that in respect of the securitization financing into which the
Mortgage Loans will be transferred on or about March 23, 1999, Financial
Security Assurance Inc., as note insurer, First Union National Bank, as
indenture trustee and Fremont Home Loan Owner Trust 1999-1, as issuer, each are
express third party beneficiaries hereof entitled to enforce any rights reserved
to it hereunder as if it were actually a party hereto.
Section 19. Amendment. The Master Servicer shall not change the duties
and obligations of the Servicer hereunder without the prior consent of the
Servicer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
Servicer: FAIRBANKS CAPITAL CORP.,
a Utah corporation
By:___________________________________
Name:
Its:
Owner: FREMONT INVESTMENT & LOAN
a California industrial loan company
By:___________________________________
Name:
Title:
EXHIBIT A
FORM OF SERVICER RENEWAL NOTICE
[SERVICER]
Re: Fremont Home Loan Asset Backed Notes, Series 1999-1
Dear Ladies and Gentlemen:
Reference is hereby made to the Servicing Agreement dated as of March
1, 1999 (the "Servicing Agreement") between Fremont Investment & Loan, as
initial Owner and Master Servicer and [SERVICER], as Servicer. The Master
Servicer, pursuant to Section 3(b)(y) of the Servicing Agreement, hereby
notifies [SERVICER] that its term as Servicer has been extended for a successive
three calendar month period beginning with the month of __________, _____.
FREMONT INVESTMENT & LOAN,
as Master Servicer
By: ________________________________
Name: _________________________
Title: _________________________
cc: [Note Insurer]
PaineWebber Mortgage Acceptance Corporation IV
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx, Esq.
Fremont Home Loan Owner Trust 1999-1
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
