SERVICING AGREEMENT
This Servicing Agreement (the "Agreement") is made as of the 25th day of
October, 2000, by and between the Provident Bank, a banking corporation
organized and existing under the laws of the State of Ohio, whose address is Xxx
Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 (the "Servicer"), and HomeGold
Financial, Inc.,a corporation whose address is 0000 Xxxxxx Xxxx Xxxxxxxxxx, XX
00000 (the"Holder").
WITNESSETH
WHEREAS, Servicer and Holder have entered into an Amended And Restated
Warehouse Loan And Security Agreement dated (the "Warehouse Agreement"), whereby
Servicer funds loans originated by Holder and secured by mortgages, deeds of
trust, trust deeds, security deeds, deeds to secure debt and like security
instruments on existing single family (I-4 units) residential properties; and
WHEREAS, Holder desires to engage Servicer as an independent contractor
to perform for a temporary period such servicing functions as are further
described herein, and Servicer desires to accept such engagement pursuant to the
terms and conditions hereinafler set forth.
NOW, THEREFORE, in consideration of the promises, terms, conditions and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
DEFINITIONS
The following terms shall have the following meanings:
Agreement: This Servicing Agreement.
Condemnation Proceeds: All awards of settlement in respect to a Mortgaged
Property by exercise of the power of eminent domain or condemnation.
Credit Files: All records and documents related to a Mortgage Loan,
including, without limitation, promissory notes, mortgages, deeds of trust or
other documents evidencing a security interest, assignments, underwriting
documents, disclosures required by applicable laws, title insurance commitments
and policies and any other documentation reasonably required by Servicer to set
up and service the accounts.
Deposit Account: The account or accounts maintained pursuant to
Section 7.
10
Escrow Account: The separate account or accounts maintained pursuant to
Section 9.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, mortgage insurance premiums, hazard insurance
premiums, taxes, assessments, condominium fees, and any other payments required
to be escrowed by the Mortgagor with the Mortgagee pursuant to the Mortgage or
other loan documents.
FHA: The Federal Housing Administration, an agency within the United
States Department of Housing and Urban Development, or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
FNMA: The Federal National Mortgage Association or any successor thereto.
Holder: HomeGold Financial, Inc.or its successors and assigns.
HUD: The Department of Housing and Urban Development.
Investor: The purchaser of any Mortgage Loan from HomeGold, "holder"
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related mortgaged property
including FHA insurance proceeds and/or VA guaranty proceeds.
Liquidation Proceeds: Cash received in connection with the liquidation of
a defaulted Mortgage Loan, whether through the sale or assignment of such
Mortgage Loan, trustee's sale, foreclosure sale or otherwise.
Monthly Payment: The scheduled monthly payment of principal and interest
on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a lien in fee simple in real property securing the
Mortgage Note.
Mortgage Interest Rate: The annual rate of interest borne on a Mortgage
Loan.
Mortgage Loan: An individual Mortgage Loan which is subject to this
Agreement and which includes, without limitation, the Mortgage Note, Mortgage,
the Credit File and all rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgage Property: The real property securing repayment of any Mortgage
Note.
11
Mortgagee: HomeGold Financial, Inc. , its successors and assigns.
Mortgagor: The obligor on a Mortgage Note.
Private Mortgage Insurance: A policy of mortgage guaranty insurance
issued by a qualified insurer with respect to certain Mortgage Loans.
Servicer: The Provident Bank and its successors and assigns.
Warehouse Agreement: The Amended and Restated Warehouse Loan and Security
Agreement between Provident Bank and HomeGold dated
Transfer Date: The Transfer Date with respect to any Mortgage Loan shall
be the date upon which the Servicer is entitled to receive the transfer of
servicing responsibilities pursuant to the Agreement.
VA: The Veterans Administration, an agency of the United States of
America, or any successor thereto.
1. Relationship of Parties. Holder and Servicer specifically agree that
in the servicing of any loan hereunder, Servicer shall have the status of and
act as an independent contractor. Nothing herein shall be construed to create a
partnership or joint venture between Holder and Servicer. The representations
and warranties of Servicer contained in this Agreement shall in no event be
construed as a warranty or guaranty by Servicer as to future payments by any
Mortgagor. Further, Servicer shall not be responsible for any representations
and warranties which are directly related to the origination process or between
Holder and any Investor relating to the origination or servicing of any Mortgage
Loan.
2. Types of Loans. All loans submitted to Servicer for servicing
hereunder shall be fixed or adjustable rate loans secured generally by first and
second liens on existing single family (1-4 units) residential properties.
Notwithstanding the foregoing, Servicer reserves the right to require Holder to
submit for servicing other types of loans (such as multi-family loans) that
Servicer in its sole discretion deems necessary. The documentation for each loan
submitted hereunder shall provide for payments of principal, interest and
deposits, if any, to be paid once monthly. Servicer retains the right to reject
for servicing any loans with other payment frequencies.
3. Compensation. As compensation for rendering the services set forth
herein, Servicer shall be entitled to:
(i) A set-up fee of fifty ($50.00) dollars per Mortgage Loan
payable on or before the earlier of receipt by Servicer of
the Mortgagor's first Monthly Payment, or sale of the
Mortgage Loan to an Investor. Notwithstanding anything
contained in this Agreement or the Warehouse Agreement to
the contrary, Holder and Servicer expressly agree that the
amount of any compensation owing to Servicer may be
12
withdrawn from either the Deposit Account established
hereunder or the Cash Collateral Account established by and
pursuant to the Warehouse Agreement.
(ii) Beginning with each Transfer Date, Servicer shall retain
from each monthly payment with respect to any Mortgage Loan
a servicing fee in an amount equal to one twelfth (1/12) of
the servicing fee rate. The servicing fee rate for each
mortgage loan shall be 0.50% per annum (50 basis points).
If the mortgage loan retained for servicing by the Servicer
is released prior to the collection of a monthly payment,
the service fee will be calculated on a daily rate
equivalent to one three-hundred sixty (1/360) of the
servicing fee rate.
(iii) Servicing-related fees charged to Mortgagors, including,
but not limited to, release and satisfaction fees, pay-off
statement fees, tax service fees, NSF fees, deferral
charges, late charges, subordination fees, modification
fees, fees for providing copies of documents from a Credit
File to any Mortgagor and other miscellaneous servicing
fees that Servicer may lawfully charge a Mortgagor whose
loan is being serviced
(iv) Investment earnings on the custodial account and escrow
account (if allowed by applicable law).
4. Holder Responsibilities. Holder shall be responsible for:
(i) Providing Servicer with complete Credit Files for each loan
submitted hereunder to enable Servicer to place and service
the loan(s) on its system. All such documentation must be
received no later than seventy-two hours (72) after the
close of any purchase-money transaction, and no later than
seventy-two hours (72) after the end of the applicable
rescission period for any refinance transaction (the
Transfer Date).
(ii) Advising Servicer upon delivery of each loan submitted for
servicing as to whether the loan is in a warehouse (unsold)
status. If a loan which has been delivered to Servicer in a
warehouse (unsold) status is subsequently sold, Holder will
immediately notify Servicer of the sale by written
confirmation and will deliver a copy of the Investor's
purchase advice or funding detail report, and Holder shall
pay all outstanding interest and fees owed to Servicer
pursuant to the Warehouse Agreement and this Agreement
prior to any transfer of servicing. Holder shall also
provide Servicer with all necessary information regarding
the Investor that will enable Servicer to clear the account
from its system and transfer the account to the Investor in
a timely manner. In the event the Investor charges a
penalty for late reporting, remittances, etc., which were
caused by Holder's delay in notifying Servicer of the
Investor's purchase of the loan, Holder agrees to pay such
penalty.
(iii) Providing Servicer with Escrow Payments collected at
closing, insurance and tax information and any other
documentation required by Servicer in the performance of
its servicing function pursuant to this agreement.
13
(iv) Providing Servicer with physical evidence that a hazard
insurance policy and, if applicable, a Private Mortgage
Insurance (PMI) policy (not limited to HUD's Mortgage
Insurance Coverage) is in force for each loan delivered to
Servicer for servicing and allowing Servicer sufficient
time to receive evidence in-house that all notification(s)
have been forwarded to Servicer. Further, Holder agrees to
indemnify and hold Servicer harmless from any loss, damage,
claim or expense caused by insufficient evidence of hazard
insurance, or, if applicable, by a lapse in Private
Mortgage Insurance coverage or flood insurance coverage
prior to delivery of servicing to Servicer.
(v) Assuring that improvements on property securing each
Mortgage are insured by hazard insurance in an amount at
least equal to the unpaid principal balance of the loan or
the full insurable value of the improvements, whichever is
less, of a type at least as protective as fire and extended
coverage, and containing a "standard" or`union" mortgage
clause (without contribution) in the form customarily used
in the area in which the property is located. In all
events, the provisions of the Credit File shall prevail.
The mortgagee clause will be reflected as running to the
benefit of Lender/Servicer, its successors and assigns.
During the course of servicing, the mortgagee clause in the
hazard insurance will read as follows:
The Provident Bank
Its Successors and/or Assigns
000 Xxxx Xxxxxx, Mail Stop 172D
Xxxxxxxxxx, XX 00000
(vi) Providing Servicer with all legal records, including court
orders, consent decrees, judgments, verdicts, agreed
orders, consents, and other agreements or records that
govern the servicing of the loans. Holder agrees to
indemnify and hold Servicer harmless from any loss caused
by Holder's failure to provide the information required
under this subparagraph or from the provision by Holder of
incomplete, obsolete or inaccurate information required
under this subparagraph.
(vii) Providing Servicer with such limited powers of attorney and
other documents necessary to enable the Servicer to perform
its servicing and administrative obligations under this
agreement.
5. Servicer Responsibilities. The Servicer, as an independent contractor,
shall service and administer the Mortgage Loans from and after the related
Transfer Date and shall have full power and authority, acting alone, to do any
and all things in connection with such servicing and administration which the
Servicer may deem necessary or desirable, consistent with the terms of this
Agreement and with accepted mortgage servicing practices, including taking all
actions that a mortgagee is permitted or required to take by the FHA or VA, with
respect to FHA loans and VA loans, as the case may be. The Servicer shall not
waive, modify or vary any term of any mortgage loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to a Mortgagor unless Servicer has obtained the prior consent of the
Holder. The Servicer is hereby authorized and empowered to execute and deliver
on behalf of itself and the
14
Holder all instruments of satisfaction or cancellation, or of partial or full
release, discharge and all other comparable instruments with respect to the
Mortgage Loans and with respect to the Mortgaged Properties.
(i) The Servicer shall, in accordance with the Real Estate
Settlement and Procedures Act (RESPA) or other applicable
laws, provide notice to the Mortgagors of each mortgage of
the change of servicing to the Servicer. No loans shall be
service released to any Investor until all fees, charges
and interest owed to Servicer have been paid in full and
the RESPA notification period has lapsed.
(ii) In servicing and administering any FHA loans or VA loans,
the Servicer shall comply strictly with the National
Housing Act and the FHA regulations; the Serviceman's
Readjustment Act, and the VA regulations and administrative
guidelines issued thereunder or pursuant thereto.
(iii) In servicing and administering the Mortgage Loans, the
Servicer shall employ procedures, including collection
procedures, and exercise the same degree of care that it
customarily employs and exercises in servicing and
administering mortgage loans for its own account, giving
due consideration to accepted servicing practices where
such practices do not conflict with the requirements of
this Agreement.
(iv) On or before the 5th business day of each month, the
Servicer shall report information pertaining to the
Mortgage Loans and Escrow Accounts as may reasonably be
requested by Holder and consistent with standard servicing
practices. In addition, Servicer shall provide information
necessary for Holder to complete any report required by any
Private Mortgage Insurance (PMI) carrier, HUD, VA, FHLMC,
FNMA, if applicable.
(v) Notwithstanding any other provision of this Agreement,
Servicer shall not be obligated to advance any funds to
Holder or on Holder's behalf with respect to any Mortgage
Loan subject to this Agreement. However, in the event it is
necessary to advance funds for delinquent taxes, insurance,
not limited to Private Mortgage Insurance or Mortgage
Impairment Coverage, advances will be taken from the funds
collected within the Deposit Account to cover funds
advanced.
(vi) If the Mortgage Loan becomes delinquent while under this
agreement, the Servicer shall consult with the Holder to
acquire further direction. It is expressly understood that
the Servicer will not proceed with further actions, i.e.,
legal action, until written permission is given from the
Holder advising the Servicer of the next step that should
be taken.
6. Collection of Mortgage Loan Payments. Continuously from the related
Transfer Date until the date each Mortgage Loan ceases to be subject to this
Servicing Agreement, the
15
Servicer shall proceed diligently to collect all payments due under each of the
Mortgage Loans when the same shall become due and payable and shall take special
care in ascertaining and estimating escrow payments (if applicable), and all
other charges that will become due and payable with respect to the Mortgage
Loans and each related Mortgage Property. In the event that a Mortgage Loan is
sold to an Investor net of one or more Monthly Payments (net-funded), Servicer
shall continue its effort to collect said Monthly Payments after the date the
Mortgage Loan is servicereleased to the investor (or successor servicer), for an
additional period of 60 days. Servicer shall be entitled to receive the
servicing compensation provided by this Agreement for this additional 60 day
servicing period irrespective of whether such Monthly Payments are collected by
Servicer, and the duties and obligations imposed upon Servicer under this
agreement shall terminate at the end of such 60 day period.
7. Establishment of Deposit Account. The Servicer shall deposit all funds
collected and received pursuant to any Mortgage Loan into one or more Deposit
Accounts. The Deposit Accounts shall be established and maintained at the
Provident Bank, Cincinnati, Ohio. The Servicer, in accordance with the terms of
this Agreement, may draw on the funds deposited into the Deposit Account.
The Servicer shall deposit into the Deposit Account on a daily
basis and retain therein the following collections received by the Servicer
after the related Transfer Date:
(i) All payments on account of principal on the Mortgage Loans,
including all principal prepayments;
(ii) All payments on account of interest on the Mortgage Loans:
(iii) All REO disposition proceeds in connection with payment on
account of principal and interest;
(iv) All condemnation proceeds which are applied as a principal
prepayment;
(v) Any amount required to be deposited into the Deposit
Account.
Any benefit derived from the Deposit Account shall accrue to the
Servicer.
8. Permitted Withdrawals From the Deposit Account. The Servicer shall,
from time to time, withdraw funds from the Deposit Account for the following
purposes:
(i) To make payments to the Holder in the amounts and in the
manner provided for by this Agreement:
(ii) To reimburse itself for servicing compensation provided for
in this Agreement:
(iii) To clear and terminate the Deposit Account.
16
(iv) To cure any default by Holder with the terms of this
Agreement or the Warehouse Agreement.
(v) To reimburse Servicer for any advances for any mortgage
loan made pursuant to the Warehouse Agreement.
9. Establishment of and Deposits to Escrow Account. When specifically
requested by Holder, Servicer shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan constituting Escrow Payments separate and
apart from any of its own funds and general assets, and shall establish and
maintain one or more Escrow Accounts, in the form of demand accounts. The Escrow
Accounts shall be established at The Provident Bank, Cincinnati, Ohio. The
Servicer, in accordance with the terms of this Agreement, may draw on funds
deposited into the Escrow Account. The Servicer shall deposit into the Escrow
Account or Accounts on a daily basis, and retain therein the following:
(i) All Escrow Payments collected on account of the Mortgage
Loans, for the purpose of affecting timely payment of any
such items as required under the terms of this Agreement;
(ii) All amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or
repair of any Mortgage Property;
(iii) All Liquidation Proceeds in connection with Escrow Payments
and property liquidation expenses; and
(iv) Any amounts required to be deposited by the Servicer in
connection with the deductible clause and blanket hazard
insurance policy.
The Servicer shall make withdrawals from the Escrow Account only to
affect such payments as are required under this Agreement. To the extent
required by law, the Servicer shall pay interest on escrow funds to the
Mortgagor.
10. Permitted Withdrawals From Escrow Account The Servicer may make
withdrawals from the Escrow Account or Accounts only:
(i) To affect timely payments of taxes, assessments, mortgage
insurance premiums, water rates, condominium charges, fire
and hazard insurance premiums, or other items constituting
Escrow Payments for the related Mortgage;
(ii) To refund to any Mortgagor any funds found to be in excess
of the amounts required under the terms of the related
Mortgage Loan or applicable federal or state law or
judicial or administrative ruling; and
(iv) To clear and terminate the Escrow Account upon the
termination of this Agreement.
17
11. Notification of Interest Rate Adjustments. With respect to each
adjustable rate Mortgage Loan, the Servicer shall adjust the Mortgage Interest
Rate on the related interest rate adjustment date and shall adjust the Monthly
Payment on the related mortgage payment adjustment date, if applicable, in
compliance with the requirements of applicable law and the related Mortgage and
Mortgage Note. The Servicer shall execute and deliver any and all necessary
notices required under applicable law and the terms of the related Mortgage Note
and Mortgage regarding the Mortgage Interest Rate and monthly payment
adjustments. The Servicer shall promptly, upon written request therefor, deliver
to the owner such notifications and any additional applicable data regarding
such adjustments and the methods used to calculate and implement such
adjustments. Upon discovery by the Servicer or the receipt of notice from the
Holder that the Servicer has failed to adjust the Mortgage Interest Rate or
Monthly Payment in accordance with the terms of the related Mortgage Note, the
Servicer shall deposit in the Deposit Account from its own funds the amount of
any interest loss caused the Holder thereby as such interest loss occurs.
12. Completion and Recordation of Assignment of Mortgage and FHA and VA
Change Notices. To the extent permitted by applicable law, each assignment of
mortgage is subject to recordation in all appropriate public offices for real
property records in all of the counties or other comparable jurisdictions in
which any or all of the Mortgage Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
affected at the Holder's expense. At the Holder's direction, the Servicer shall
cause the endorsement of the Mortgage Note, the assignment of mortgage, the
assignment of security agreement, and other necessary and applicable records to
be completed.
13. Remittances to Holder. With respect to each Mortgage Loan serviced
pursuant to this Agreement, the Servicer shall, after deduction for the
servicing fees provided by this agreement, deposit the remainder of each Monthly
Payment received from the Mortgagor into the applicable Deposit Account. All
Monthly Payments deposited into the Deposit Account shall be applied to reduce
the outstanding balance owing to Servicer from Holder relating to the applicable
Mortgage Loan funded by Servicer pursuant to the terms of the Warehouse
Agreement. Any excess funds remaining after payment of the servicing fees
provided by this agreement and application to the outstanding balance owed to
Servicer by Holder, shall be held in the Deposit Account until the Mortgage Loan
is transferred to an Investor, at which time such excess funds shall be remitted
to Holder. In no event shall any funds held in any Mortgagor's Escrow Account be
applied to reduce any indebtedness of holder to Servicer.
14. Advances by Servicer. The Servicer shall not be obligated to make any
advances as to any Mortgage Loan serviced pursuant to this Agreement; provided,
however, Servicer shall be obligated to reimburse Holder from its own funds as a
result of any failure by Servicer to adjust a Mortgage Interest Rate or Monthly
Payment in accordance with the terms of the related Mortgage Note as provided
for by this Agreement.
15. Representations and Warranties of the Holder. The Holder, as a
condition to the consummation of the transactions contemplated hereby, makes the
following representations and warranties to the Servicer as of each Transfer
Date:
18
(i) Due Organization and Authority. The Holder is a corporation duly
organized, validly existing and in good standing under the laws of
the state of its incorporation, and has all licenses necessary to
carry on its business as now being conducted; the Holder has the
full corporate power and authority to execute and deliver this
Agreement, and to perform in accordance herewith. The execution,
delivery and performance of this Agreement, including all
instruments of transfer to be delivered pursuant to this Agreement
by the owner, and the consummation of the transactions
contemplated hereby, have been duly and validly authorized; this
Agreement evidences the valid binding and enforceable obligation
of the owner, and all requisite corporate action has been taken by
the Holder to make this Agreement valid and binding upon the
Servicer in accordance with these terms.
(ii) Sole Owner. Holder is the sole and lawful owner and holder of the
Mortgage Loans and has full legal right, power and authority to
enter into this Agreement and to perform each and all of Holder's
obligations under this Agreement.
(iii) Compliance with Applicable Law. Holder has complied with:
(a) All applicable laws, rules and regulations of the US
Government and each applicable state and local government;
(b) If applicable, rules, regulations, handbooks and guides of
FHLMC, FNMA, other applicable investors, and each
applicable private mortgage insurer relating to such
mortgage loans, including, but not limited to, the
origination of such mortgage loans, and
(c) All provisions of each loan and the loan documents.
(iv) No Conflicts. Neither the execution and delivery of this Agreement
nor the conveyance of the responsibilities to the Servicer or the
transactions contemplated hereby, will conflict with or result in
a breach of any of the terms, conditions or provisions of the
owner's charter or bylaws, or any legal restriction or any
agreement or instrument to which the owner is now a party, or by
which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the
violation of any law, rule, regulation, order, judgment or decree
to which the Holder or its property is subject, or impair the
value of this contract consummated hereby.
(v) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Holder which,
either in any one instance or in the aggregate, may result in any
material adverse change in the business, operations, financial
condition, properties, or assets of the owner, or in any material
impairment of the right or ability of the owner to carry on its
business substantially as now conducted, or in any material
liability on the part of the owner, or which would draw into
question the validity of this Agreement, or of any action taken or
to be taken in connection with the obligations of the owner
contemplated herein, or
19
which would be likely to impair materially the ability of the
owner to perform pursuant to the terms of this Agreement.
(vi) No Untrue Information. Neither this agreement nor any statement,
report or other document furnished or to be furnished pursuant to
this Agreement or in connection with the transactions contemplated
herein, contains any untrue statement of fact or omits any fact
necessary to make the statements contained therein not misleading.
16. Indemnification by Holder. The Holder shall indemnify the Servicer
and hold it harmless against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and other
costs and expenses resulting from any claim, demand, defense or assertion based
on or grounded upon, or resulting from, a breach of the Holder representations
and warranties contained in this Agreement. Any cause of action against the
Holder relating to or arising out of the breach of any representation and
warranty made in this Agreement, shall accrue upon (i) discovery of such breach
by the Servicer or notice thereof by the Servicer to the Holder; (ii) failure by
the Holder to cure such breach; and (iii) demand upon the Holder by the Servicer
for compliance with the terms of this Agreement.
17. Representations Warranties and Agreements of the Servicer. The
Servicer, as a condition to the consummation of the transactions contemplated by
this Agreement, hereby makes the following representations and warranties to the
Holder as of each Transfer Date:
(i) Due Organization and Authority. The Servicer is an Ohio
corporation organizedand validly existing under the laws of the
State of Ohio and has all licenses necessary to carry on its
business as now being conducted, and is licensed, qualified and in
good standing in each state where a Mortgaged Property is located,
if the laws of such state require licensing or qualification in
order to conduct business of the type conducted by the Servicer,
and in any event, the Servicer is in compliance with the laws of
any such state to the extent necessary to insure the
enforceability of the terms of this Agreement; the Servicer has
the full corporate power and authority to execute and deliver this
Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this
Agreement) by the Servicer in the consummation of the transactions
contemplated hereby, have been duly and validly authorized; this
Agreement evidences the valid binding and enforceable obligation
of the Servicer and all requisite corporate action has been taken
by the Servicer to make this Agreement valid and binding upon the
Servicer in accordance with its terms.
(ii) Ability to Perform. The Servicer does not believe, nor does it
have any reason or cause to believe, that it cannot perform each
and every covenant and undertaking contained in this Agreement.
(iii) Ability to Service. The Servicer is an FHA approved mortgagee, a
VA approved lender, and an approved seller/servicer of
conventional residential mortgage loans for FNMA or FHLMC, with
the facilities, procedures and experienced personnel
20
necessary for the sound servicing of mortgage loans of the same
type as the Mortgage Loans. The Servicer is in good standing to
service mortgage loans for the FHA and the VA, and either FNMA or
FHLMC, and no event has occurred, including, but not limited to, a
change in insurance coverage, which would make the Servicer unable
to comply with FHA and VA, and either FNMA or FHLMC eligibility
requirements or which would require notification to any of the
FHA, VA, FNMA or FHLMC.
(iv) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Servicer which,
either in any one instance or in the aggregate, may result in any
material adverse change in the business operations, financial
condition, property or assets of the Servicer, or in any material
impairment of the ability of the Servicer to carry on its business
substantially as now conducted or in any material liability on the
part of the Servicer, or which would draw into question the
validity of this Agreement, or of any action taken or to be taken
in connection with the obligations of the Servicer contemplated
herein, or which would be likely to impair materially the ability
of the Servicer to perform under the terms of this Agreement.
(v) No Untrue Information. Neither this Agreement nor any statement,
report or other document furnished or to be furnished pursuant to
this Agreement or in connection with the transactions contemplated
hereby contains any untrue statements of fact or omits to state a
fact necessary to make the statements contained therein not
misleading.
(vi) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition of the servicing responsibilities by
the Servicer, or the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the
terms, conditions or provisions of the Servicer's charter or
bylaws or any legal restriction or any agreement or instrument to
which the Servicer is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the
foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Servicer or its
property is subject, or impair the ability of the Servicer to
service the mortgage loans, or impair the value of the mortgage
loans.
18. Indemnification of Holder by Servicer. The Servicer shall indemnify
the Holder and hold it harmless against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, breach of the Servicer
representations and warranties contained in this Agreement. Any cause of action
against the Servicer relating to or arising out of the breach of any
representation and warranty made in this Agreement by Servicer shall accrue upon
(i) discovery of such breach by the Holder or notice thereof by the Holder to
the Servicer, (u) failure by the Servicer to cure such breach, and (iii) demand
upon the Servicer by the Holder for compliance with this Agreement.
21
19. Termination. With respect to any Mortgage Loan accepted by Servicer
as of the Transfer Date, termination shall occur when Holder has conveyed its
interest in the Mortgage Loan to an Investor, and Servicer has received all
advances, fees and accrued interest pursuant to the Warehouse Agreement between
Holder and Servicer, or when the Warehouse Agreement is terminated according to
the terms thereof. If a Mortgage Loan is purchased by an Investor net of one or
more Monthly Payments (net-funded), termination with respect to such Mortgage
Loan shall occur as provided in Section 6 above.
20. Severability. If any part, provision, representation or warranty of
this Agreement is deemed prohibited or is held to be void or unenforceable, such
provision, representation or warranty shall be ineffective to the extent that
such prohibition or unenforceability without invalidating the remaining
provisions hereof.
21. Place of Delivery and Governing Law. This Agreement shall be deemed
in effect when fully executed, and a signed counterpart thereof is received by
Servicer in the State of Ohio, and shall be deemed to have been made in the
State of Ohio. This Agreement shall be construed in accordance with the laws of
the State of Ohio and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with the laws of the State of Ohio.
22. Binding Agreement. This servicing agreement shall be binding upon and
inure to the benefit of the parties hereto, their successors and assigns. This
servicing agreement may not be assigned by either party without the prior
written consent of the non-assigning party.
23. Notices. All notices or communications required of this Agreement
shall be deemed to be property served when personally delivered, or when placed
in the US mail, first class, postage prepaid, addressed as set forth here and
below.
24. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts. Each counterpart shall be deemed to be an original, and
all such counterparts shall constitute one and the same instrument.
25. 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.
IN WITNESS WHEREOF, the Servicer and Holder have caused their names to be
signed and delivered by their duly authorized officers as of the date first
above written.
22
PROVIDENT BANK
BY:
NAME:
TITLE:
[INSERT HOLDER NAME]
BY:
NAME: Xxxxxxx X Xxxxxxx
TITLE: President
23
Customer Management Client Questionnaire
To provide you with the superior customer service we've promised as well as
manage your borrowers account we have prepared these questions specific to your
portfolio. This questionnaire should be returned with your executed servicing
agreement. If you have any questions please call:
Xxxxx Xxxxxx
Vice President Operations,
PCFS Interim Servicing
0-000-000-0000, ext 18001
Interim Client Name: HomeGold Financial, Inc.
Mailing Address: X.X. Xxx 00000
Xxxxxxxxxx, XX 00000
Servicing Contact: Xxxxx Xxxx/Xxxxxxxx Xxxxx
Phone#: 000-000-0000/000-000-0000
Fax#: 0000-000-0000
E-mail Address: xxxxx.xxxx@xxxxxxxx.xxx/xxxxxxxx.xxxxx@xxxxxxxx.xxx
DDA Accounts
DDA Account #:
Bank Name:
24
Mailing Address:
Phone #:
Contact Person:
Customer Service
1. Who is the contact for approval of a Partial Release and execution of any
related loan modification documents? Xxxxxx Xxxx
2. If you have any second mortgages in your portfolio, will you consider a
request to subordinate the second when the first mortgage is being
refinanced? Yes
3. If yes, who is the contact to review the request and execute the
subordination agreement?
Xxxxxxxx Xxxxx/Xxxxx Xxxx
4. If your loans contain prepayment penalties who is the contact to
review/approve a request to waive or modify the penalty?
5. Do you consent to termination of an escrow account when the borrower
requests? YES or NO N/A
6. If yes, who is the contact to review the request? N/A
7. If an escrow account WAS NOT established at closing, does the client
allow an escrow account to be established upon receipt of a borrower's
written request? NO
Tax Escrow
25
1. On non-escrowed loans, at what point do you prefer PCFS advance escrow
funds to pay delinquent property taxes: At first notice of delinquency or
only when the property is in jeopardy of Tax Sale? Tax sale notification
2. Do you prefer to be contacted to approve disbursement of delinquent taxes
on non-escrowed loans? YES
3. If yes, who is the contact to approve?
Xxxxxxxx Xxxxx
PAH
1. Do any loans in your portfolio have privat mortgage insurance paid by the
lender and not through the borrower's escrow payment? NO
2. Who is your PMI vendor? N/A
3. Where do you maintain your original PMI Certificates? NIA
(PCFS must receive a copy if you choose to retain the originals.)
VA & FHA Loans
26
1. Where do you maintain your original MIC or MIP Certificates? N/A
(PCFS must receive a copy if you choose to retain the originals.)
You will have access to investor accounting reports to monitor the status of
your accounts:
o Daily Xxxxxxx Mac Payoff Report Daily Payoff Report
o Daily Regular Payment Remit Report
o Fanme Mae Loan Activity Report
o Xxxxxxx Mac Loan Level Report
o Investor Collections Report
o Investor Curtailments Report
o Investor Cutoff Summary Report
o Investor Delinquent Report
o Investor Interim Remit Sum Report
o Investor Loan Sale Report
o Investor Payoffs Report
o Investor Prepaid Report
o Investor Rate and Payment Change Report
o Investor Remittances Report
o Investor Trial Balance Report
o MIDANET Report
o P&I Collections To Date Report
o Remittance Report
o Single Debit Report
o MORNET Report
o Pending Loan Transfers
27
