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EXHIBIT 10.19
MORTGAGE LOAN SERVICING AGREEMENT
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MORTGAGEE NAME: XXXXXXX XXXXX, INC.
MORTGAGEE ADDRESS: 00 X. XXXXX XXXXXX, XXXXXXXXXXXX, XXXXXXX 00000-0000
TYPE OF BUSINESS ENTITY: BANK HOLDING COMPANY
DATE OF AGREEMENT: APRIL ___, 1996 MORTGAGEE CONTACT PERSON: XXXXXX XXXXXX
PHONE NO: (000) 000-0000
FAX NO: (000) 000-0000
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This Mortgage Loan Servicing Agreement (the "Servicing Agreement") is entered
into as of the date shown above by and between the Servicer and the Mortgagee,
and applies to any of the transactions described below.
RECITALS.
1. The Servicer is in the business of servicing residential mortgage loans,
including, but not limited to, conventional, FHA, VA and certain other Mortgage
Loans, including, but not limited to, first and second lien Mortgage Loans.
2. The Mortgagee is now or will be the owner of certain Notes secured by
Mortgages.
3. The Mortgagee desires the Servicer to service the Mortgage Loans under the
terms set forth in this Servicing Agreement.
4. The Servicer desires to service the Mortgage Loans under the terms set forth
in this Servicing Agreement.
IN CONSIDERATION of the mutual promises made in this Servicing Agreement and
other good and valuable consideration, the receipt and sufficiency of which are
acknowledged, the Servicer and the Mortgagee agree as follows:
1. DEFINITIONS.
1.1. "AFFILIATE" means an entity that, directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is under common control
with, another entity. For purposes of this definition, "control", "controlled
by", and "under common control with" means the direct or indirect possession of
ordinary voting power to elect a majority of the board of directors or
comparable body of an entity.
1.2. "AGENCY" means FNMA, FHLMC, FHA, HUD, VA, GNMA.
1.3. "BORROWER" means each obligor under a Mortgage Note.
1.4. "DELINQUENT MORTGAGE LOAN" means a Mortgage Loan with respect to which: (a)
one or more Mortgage Loan payments have not been received by the holder of the
Mortgage Note before the end of the month during which any such Mortgage Loan
payment was due, (b) Mortgage Loans in bankruptcy with one or more Mortgage Loan
payments which have not been received by the holder of the Mortgage Note on or
before the due date in the Mortgage Note, (c) Mortgage Loans in foreclosure, (d)
Mortgage Loan subject to an assignment of deed in lieu of foreclosure, or (e)
Mortgage Loan subject to the HUD assignment program.
1.5. "ESCROW ACCOUNTS" means Mortgage Loan escrow/impound accounts for taxes,
insurance, assessments, ground rents, buydowns, loss drafts, and any other such
amounts which are maintained by the Servicer as a fiduciary for the Borrowers
and investors, and relate to the Servicing Rights.
1.6. "FHA" means the Federal Housing Administration or any successor to the FHA.
1.7. "FNMA" means the Federal National Mortgage Association or any successor to
FNMA.
1.8. "FHLMC" means the Federal Home Loan Mortgage Corporation or any successor
to FHLMC.
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SERVICING AGREEMENT
1.9. "GNMA" means the Government National Mortgage Association or any successor
to GNMA.
1.10. GUIDE" means: (a) the Handbook GNMA 5500.1, Government National Mortgage
Association GNMA I Mortgage-Backed Securities Guide, Handbook GNMA 5500.2, in
each case as such Guide may be amended from time to time, (b) the HUD 4155.1
REV-4, Single Family Direct Endorsement Program, HUD 4060.1 REV-1, Mortgagee
Approval Handbook, (c) the FNMA Selling and Servicing Guides, (d) the FHLMC
Mortgagees' and Servicers' Guides, and/or (e) any guide or instructions provided
from time to time by a private investor, in each case as such Agency Guide may
be amended from time to time.
1.11. "HUD" means the United States Department of Housing and Urban Development,
or any successor to HUD.
1.12. "MORTGAGE" means a mortgage, deed of trust, or other such security
instrument which is executed by a Mortgagor pledging the Mortgaged Property as
security for repayment of a Mortgage Note.
1.13. "MORTGAGE DOCUMENTS" means all documents required by applicable law, an
Agency, the Servicer, and/or a private mortgage insurer to service a Mortgage
Loan.
1.14. "MORTGAGEE" means: (a) the entity defined as "Mortgagee" above, (b) any of
its Affiliate banks, and (c) its Affiliate mortgage company, as applicable
within the context used.
1.15. "MORTGAGE LOAN" means a residential mortgage loan which is: (a) secured by
a Mortgage, (b) owned by the Mortgagee, and (c) serviced by the Servicer under
the terms of this Servicing Agreement.
1.16. "MORTGAGE NOTE" means the written promise of a Borrower to pay a sum of
money in United States' dollars at a stated interest rate over a specified term,
and which is secured by a Mortgage.
1.17. "MORTGAGED PROPERTY" means the real property, together with the
one-to-four family dwelling and any other improvements situated on such real
property, which have been pledged by a Mortgagor under a Mortgage as collateral
to secure the obligation under a related Mortgage Note.
1.18. "MORTGAGOR" means each person who executes a Mortgage.
1.19. "OPERATING AGREEMENT" means the Operating Agreement entered into by and
between the Servicer and the Mortgagee pursuant to which this Servicing
Agreement is attached as EXHIBIT C.
1.20. "SERVICER" means HomeSide Lending, Inc., a business corporation organized
under the laws of the state of Florida and with its principal place of business
at 0000 Xxxxxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000.
1.21. "SERVICING AGREEMENT" means this Servicing Agreement and all Exhibits
attached hereto.
1.22. "SERVICING RIGHTS" means the rights to service the Mortgage Loans and
collect the servicing fees, late fees and certain other ancillary amounts
relating to the Mortgage Loans, including, but not limited to, amounts under an
Escrow Account.
1.23. "TRETS" means TransAmerica Real Estate Tax Service, Inc.
1.24. "VA" means the Department of Veterans Affairs, or any successor to the VA.
2. STANDARD OF CARE.
2.1. IN GENERAL. The Servicer will perform its duties and obligations under this
Servicing Agreement for all Mortgage Loans in accordance with: (a) applicable
Federal, State and local laws, rules, regulations, and orders, and (b) prudent
mortgage banking practices.
2.2. GOVERNMENT MORTGAGE LOANS. In addition to 2.1 above, the Servicer will
perform its duties and obligations under this Servicing Agreement for FHA and VA
Mortgage Loans in accordance with the Guides, regulations and practices of the
applicable Agency.
2.3. MORTGAGE LOANS OTHER THAN GOVERNMENT MORTGAGE LOANS. In addition to 2.1
above the Servicer will perform its duties and obligations under this Servicing
Agreement for Mortgage Loans other than FHA and VA Mortgage Loans in accordance
with the Guides, regulations and practices of: (a) FNMA, (b) FHLMC, and (c) the
applicable private mortgage insurance if a Mortgage Loan is required to have
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SERVICING AGREEMENT
private mortgage insurance and (d) this Servicing Agreement. If any provision of
a FNMA Guide, regulation, or practice is inconsistent with a provision in a
FHLMC Guide, regulation, or practice, the FNMA provision will control.
2.4. PRIVATE BANK MORTGAGE LOANS. Without limiting the scope of the foregoing,
the Servicer will provide to Mortgagors who are private banking clients of the
Mortgagee the additional tasks and services listed on EXHIBIT A of this
Servicing Agreement and requested by the Mortgagee, the fees for which are
described in EXHIBIT A to this Servicing Agreement. The Mortgage Loans which are
provided by the Mortgagee's private banking department to certain borrowers
under the Mortgagee's Community Reinvestment Act efforts will be serviced under
the general provisions of this Servicing Agreement rather than under the special
provisions of EXHIBIT A to this Servicing Agreement. Each Mortgage Loan with
such a Mortgagor will be subject to the special private banking fees and charges
described in EXHIBIT A TO this Servicing Agreement in addition to the standard
servicing fees and charges described in such EXHIBIT B.
3. COLLECTING PAYMENTS.
The Servicer will use reasonable efforts to collect each Mortgage Loan payment
when such payments become due until all amounts due and owing under or in
connection with each such Mortgage Loan has been paid in full.
4. SERVICING TASKS.
4.1. REMITTING PRINCIPAL AND INTEREST. The Servicer will pay to the Mortgagee
each month all Mortgage Loan principal and interest payments received by the
Servicer from each Mortgagor, less the amount of the servicing fees set forth in
EXHIBIT A AND EXHIBIT B to this Servicing Agreement. Such remittance will be
made in accordance with the actual/actual remittance method. The Servicer will
deliver to the Mortgagee a remittance advice and a full accounting report
containing information relating to the servicing fee on such dates as shall be
mutually acceptable to the Servicer and the Mortgagee.
4.2. INCREMENTAL SERVICES AS REQUESTED. If requested by the Mortgagee, the
Servicer will perform certain reporting, investor service, custodial liaison and
other credit-related services described in EXHIBITS A, B AND D to this Servicing
Agreement.
5. COMPENSATION.
5.1. GENERAL FEE SCHEDULE. The Mortgagee will pay to the Servicer the fees and
charges set forth in EXHIBITS A AND B to this Servicing Agreement.
5.2. SERVICER MAY RETAIN CERTAIN OTHER CHARGES AND FEES. The Servicer will
charge and retain the full amount of any late charges, returned check charges,
partial release and assumption processing fees, and other administrative fees
and charges described in EXHIBIT A AND EXHIBIT B to this Servicing Agreement and
allowed by: (a) FNMA and/or FHLMC in their Guides or other rules or regulations
with respect to Mortgage Loans other than FHA and VA Mortgage Loans, and (b) the
applicable Agency in its Guide or other rules or regulations with respect to FHA
and VA Mortgage Loans.
5.3. MORTGAGEE WILL PAY ALL CUSTODIAL FEES AND EXPENSES. The Mortgagee will pay
any and all costs, expenses and fees relating to the Mortgagee's custodian and
the custodial services provided by such custodian for the Mortgage Loans.
5.4. MORTGAGEE WILL PAY ALL TRETS AND FLOOD CERTIFICATION AND TRACKING FEES. The
Mortgagee will collect from the Mortgagor and pay over to the Servicer any and
all fees relating to or arising out of each: (a) "life of loan" transferable tax
service contract, which contract is either with TRETS or are fully transferable
to TRETS, and (b) transferable flood insurance certification and "life of loan"
tracking service from a flood service provider acceptable to the Servicer.
5.5. MORTGAGEE WILL PAY ALL FEES RELATING TO CERTAIN ADDITIONAL SERVICES. The
Mortgagee will pay to the Servicer any fees relating to any additional service
which the Servicer: (a) is required to perform by applicable law, rule,
regulation or order, and (b) reasonably believes the Servicer is unable to
collect directly from a Mortgagor or Borrower.
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6. CUSTODIAL ACCOUNT.
6.1. INSURED DEPOSIT ACCOUNTS. The Servicer will hold all funds relating to the
Mortgage Loans in a custodial bank account at a depository financial institution
with deposits insured by the Federal Deposit Insurance Corporation, and will
maintain all records necessary to secure and obtain the maximum Federal Deposit
Insurance Corporation insurance for each beneficiary of the account.
6.2. MORTGAGE LOANS WITH AN ESCROW ACCOUNT. The Servicer will pay promptly all
hazard insurance premiums, mortgage insurance premiums, real estate taxes, and
other obligations which have funds in an Escrow Account during the term of this
Servicing Agreement promptly after receiving a xxxx for any such amount. If an
Escrow Account does not contain funds sufficient to pay such amounts, the
Servicer will advance funds for the payment of such amounts in the manner and to
the extent required by applicable law. The Servicer may elect to waive the
collection of such escrow charges without the express permission of the
Mortgagee in accordance with this Servicing Agreement.
6.3. MORTGAGE LOANS WITH NO ESCROW ACCOUNTS. The Servicer will advance funds on
behalf of a Mortgagor who does not maintain an Escrow Account for the payment of
taxes and certain other amounts. The Servicer will use its best efforts to
collect any such funds from each such Mortgagor. If the Servicer is unable to
recover any such funds from a Mortgagor, the Mortgagee will pay such funds to
the Servicer monthly.
6.4. ANNUAL CERTIFICATION. At the request of the Mortgagee, the Servicer will
certify once each year that all general property taxes, special assessments, and
hazard insurance premiums have been paid on the Mortgaged Properties securing
the Mortgaged Loans.
7. DELINQUENT MORTGAGE LOANS.
The Servicer's Delinquent Mortgage Loan collection efforts will be made in
accordance with the standard of care described in SECTION 2 above. The Servicer
will provide standard mortgage servicing package delinquency reports to the
Mortgagee once each month during the term of this Servicing Agreement.
8. INSURANCE.
The Servicer will use reasonable efforts to ensure that there is in force for
each Mortgaged Property a hazard insurance policy which: (a) is acceptable to
the applicable Agency, (b) contains the mortgagee clause: " HomeSide Lending,
Inc., its successors and/or assigns" or such other clause which is acceptable to
the Servicer, (c) insures against loss or damage by fire, all other hazards set
forth in the standard extended coverage form of endorsement, and any other
insurable risks against hazards required by the applicable Agency, (d) has been
issued in an amount equal to the lesser of the outstanding principal balance of
the Mortgage Loan or the full insurable value of the improvements to the
Mortgaged Property, and (e) if required by the Flood Disaster Protection Act of
1973 and/or the National Flood Insurance Reform Act of 1994, a flood insurance
policy in an amount representing coverage equal to the lesser of the outstanding
principal balance of the Mortgage Loan or the maximum amount of insurance which
is available under the Flood Disaster Protection Act of 1973 and/or the National
Flood Insurance Reform Act of 1994, as may be amended from time to time. If a
Mortgagor fails to maintain such insurance coverage, the Servicer may obtain
such coverage on behalf of such Mortgagor, and the Servicer may collect the
insurance premiums from the Mortgagor under the terms of the Mortgage. The
Servicer will retain, service, and continually maintain evidence of such
insurance coverage, as required by the Mortgagee. The Mortgagee will reimburse
the Servicer for the cost of maintaining insurance coverage in the event the
loan completes foreclosure.
The Servicer is authorized to sign on behalf of the Mortgagee for all loss
drafts relating to such insurance coverage in the manner and to the extent set
forth in EXHIBIT E And the FNMA Servicing Guide, as amended from time to time.
9. INSPECTIONS.
The Servicer will inspect a Mortgaged Property to determine its physical
condition and occupancy status: (a) each month following the Mortgagor's default
until such Mortgaged Property has been foreclosed or the Mortgage Loan has been
reinstated, and (b) in accordance with the applicable Agency's Guide and/or the
Servicer's standard operating procedures with respect to
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damaged Mortgaged Properties. The Servicer will use its best efforts to recover
from each Mortgagor all costs and expenses relating to or arising out of such
inspections. If the Servicer is unable to recover such costs and expenses from
the Mortgagor, the Mortgagee will reimburse the Servicer for all such costs and
expenses at the time of any foreclosure sale, presale, or acceptance of a deed
in lieu of foreclosure.
10. SPECIAL NOTICE TO MORTGAGEE.
The Servicer will notify the Mortgagee in writing promptly after the Servicer
discovers that: (a) there is a material default under the terms of a Mortgage or
Mortgage Note, or (b) a Mortgaged Property has been sold or transferred.
11. PREPAYMENT.
The Servicer will not accept any full or partial principal prepayment of a
Mortgage Loan unless: (a) the Mortgage and/or Mortgage Note allows such
prepayment, (b) the Mortgagee authorizes such prepayment in writing, and/or (c)
applicable law, rule, regulation or order requires the Servicer to accept such
prepayment.
12. FORECLOSURES
12.1. COMPLIANCE WITH APPLICABLE RULES. The Servicer or its designated agent
will begin foreclosure proceedings or otherwise begin to acquire a Mortgaged
Property promptly after a Mortgagor has defaulted on a Mortgage Loan. These
proceedings will be conducted in the manner described in SECTION 2 above. If the
Mortgaged Property is conveyed to the FHA or the VA, the Servicer will
facilitate any settlement with applicable Agency. The Mortgagee will be
responsible for any deficiency in any claim settled by the Servicer with such an
Agency or private mortgage insurance company.
12.2. MANNER OF CONDUCTING FORECLOSURES. The Servicer or its designated agent
will conduct all such proceedings in the manner described in SECTION 2 above,
and will take title to the Mortgaged Property in the name designated by the
Mortgagee. The Mortgagee will pay to the Servicer the mitigation fees set forth
in EXHIBIT B to this Servicing Agreement for services requested by the
Mortgagee. The Servicer will perform only those foreclosure or related
procedures which are normal and customary for foreclosures in each jurisdiction
where the Mortgaged Property is situated.
12.3. MANAGING AND PROTECTING THE MORTGAGED PROPERTY. Unless otherwise directed
by the Mortgagee, the Servicer will manage and protect the Mortgaged Property
from the date the Servicer commences foreclosure until the date when such
proceedings have been terminated and title to the property has been conveyed to
the appropriate person or entity. The manner of such services will be consistent
with the management of real estate in the jurisdiction in which the Mortgaged
Property is situated including, but not limited to, the: (a) placement and
payment of certain insurance relating to the Mortgaged Property, (b) management
and supervision of repairs to and maintenance of the Mortgaged Property, and (c)
preparation of such reports as may be reasonably required by the Mortgagee. The
Servicer will obtain any authorization from any Agency or such other authority
required to manage and protect the Mortgaged Property.
12.4. MORTGAGEE WILL APPOINT CONTACT PERSON. The Mortgagee will designate an
employee of the Mortgagee who will be responsible for: (a) approving
extraordinary foreclosure matters and loss mitigation-related expenses,
including, but not limited to, litigation expenses, (b) Mortgaged Property
donations, and (c) other credit-related matters requiring the prior approval of
the Mortgagee. Such designated employee shall be authorized by Mortgagee to
instruct Servicer with respect to each of said matters and shall respond
promptly to all of the Servicer's inquiries and requests.
12.5. MORTGAGEE WILL REIMBURSE SERVICER FOR COSTS. The Servicer will xxxx the
Mortgagee for any and all expenses relating to or arising out of a foreclosure,
deed in lieu of foreclosure, deficiency proceeding, and other disposition of the
Mortgaged Property and actions relating thereto, including, but not limited to,
reasonable attorneys' fees, court costs, appraisals, filing costs, process fees,
and all other actual out-of-pocket expenses paid to third parties. The Mortgagee
will reimburse the Servicer for such costs and expenses no later than thirty
(30) calendar days after the Mortgagee receives the Servicer's consolidated
invoice for such costs and expenses. The Servicer may collect any such cost or
expense or any fee set forth in EXHIBIT B from
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SERVICING AGREEMENT
the proceeds of any disposition of any Mortgaged Property.
13. FIDELITY AND E & O COVERAGE.
The Servicer will maintain a fidelity bond with a responsible surety company on
all of the Servicer's employees who may have access to the Mortgagee's funds,
monies, and documents. The bond will protect the Servicer against losses,
including theft, embezzlement, fraud, and misplacement. The Servicer will
maintain Fire and Extended Coverage Errors and Omissions Insurance, which will
reimburse the Servicer for any losses relating to the Servicer's failure to
require, procure, maintain or provide Fire and Extended Coverage Insurance on
the Mortgaged Properties.
14. MORTGAGEE REPRESENTATIONS AND WARRANTIES.
The Mortgagee represents, warrants and agrees that, as of the date of this
Servicing Agreement:
14.1. PARTY IS DULY ORGANIZED.
The Mortgagee is a duly organized and validly existing bank holding company. The
Seller's Affiliate banks are each duly organized and validly existing national
banking associations organized under the laws of the United States. The Seller's
Affiliate mortgage company is a duly organized and validly existing business
corporation. Each is in good standing under the laws of the jurisdiction of
organization, and has the requisite power and authority to enter into this
Servicing Agreement and any other agreements to which Mortgagee is party and
that are contemplated by this Servicing Agreement.
14.2. AGREEMENT IS DULY AUTHORIZED.
Mortgagee has all requisite corporate power, authority and capacity to enter
into this Servicing Agreement and to perform the obligations required of it
under this Servicing Agreement. The execution and delivery of this Servicing
Agreement, and the consummation of the transactions contemplated by this
Servicing Agreement, have each been duly and validly authorized by all necessary
corporate action. This Servicing Agreement constitutes the valid and legally
binding agreement of each party, enforceable in accordance with its terms,
except as they may be limited by bankruptcy, insolvency, reorganization or other
laws affecting the enforcement of creditors' rights and by general equity
principles, and no offset, counterclaim or defense exists to the full
performance of this Servicing Agreement.
14.3. AGREEMENT DOES NOT VIOLATE ANY OTHER OBLIGATION.
Insofar as Mortgagee's capacity to carry out any obligation under this Servicing
Agreement is concerned, Mortgagee is not in violation of any provision of any
charter, certificate of incorporation, by-law, mortgage, indenture,
indebtedness, agreement, instrument, judgment, decree, order, statute, rule or
regulation, and there is no such provision that adversely affects its capacity
to carry out such obligations. Mortgagee's execution of, and performance
pursuant to, this Servicing Agreement will not result in such violation.
14.4. PARTY IS DULY LICENSED.
Mortgagee holds the required licenses and, to the extent required, is in
compliance with all state and federal laws governing the transfer and Servicing
of Mortgage Loans transferred under this Servicing Agreement.
14.5. WARRANTIES SURVIVE.
Mortgagee agrees that all warranties and obligations under this Servicing
Agreement are perpetual and will survive the termination of this Servicing
Agreement.
15. SERVICER REPRESENTATIONS AND WARRANTIES.
The Servicer represents, warrants and agrees that, as of the date of this
Servicing Agreement:
15.1. PARTY IS DULY ORGANIZED.
The Servicer is a duly organized and validly existing corporation and is in good
standing under the laws of the jurisdiction of organization, and has the
requisite power and authority to enter into this Servicing Agreement and any
other agreements to which Servicer is party and that are contemplated by this
Servicing Agreement.
15.2. AGREEMENT IS DULY AUTHORIZED.
Servicer has all requisite corporate power, authority and capacity to enter into
this Servicing Agreement and to perform the obligations required
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of it under this Servicing Agreement. The execution and delivery of this
Servicing Agreement, and the consummation of the transactions contemplated by
this Servicing Agreement, have each been duly and validly authorized by all
necessary corporate action. This Servicing Agreement constitutes the valid and
legally binding agreement of each party, enforceable in accordance with its
terms, except as they may be limited by bankruptcy, insolvency, reorganization
or other laws affecting the enforcement of creditors' rights and by general
equity principles, and no offset, counterclaim or defense exists to the full
performance of this Servicing Agreement.
15.3. AGREEMENT DOES NOT VIOLATE ANY OTHER OBLIGATION.
Insofar as Servicer's capacity to carry out any obligation under this Servicing
Agreement is concerned, Servicer is not in violation of any provision of any
charter, certificate of incorporation, by-law, mortgage, indenture,
indebtedness, agreement, instrument, judgment, decree, order, statute, rule or
regulation, and there is no such provision that adversely affects its capacity
to carry out such obligations. Servicer's execution of, and performance pursuant
to, this Servicing Agreement will not result in such violation.
15.4. PARTY IS DULY LICENSED.
Servicer holds the required licenses and is in compliance with all state and
federal laws governing the transfer and Servicing of Mortgage Loans transferred
under this Servicing Agreement.
15.5. WARRANTIES SURVIVE.
Servicer agrees that all warranties and obligations under this Servicing
Agreement are perpetual and will survive the termination of this Servicing
Agreement.
16. INDEMNIFICATION.
16.1. MORTGAGEE WILL INDEMNIFY SERVICER. The Mortgagee shall indemnify the
Servicer and shall hold the Servicer harmless from and against any and all
losses, liabilities, penalties, damages, expenses or other harm or injury which
the Servicer may incur or suffer or which may be asserted by any person or
entity, including reasonable attorneys' fees and court costs, arising out of any
action at any time taken or omitted to be taken (a) by the Mortgagee under or in
connection with this Servicing Agreement and/or any applicable Exhibit to the
Agreement, including, without limitation, any failure by the Mortgagee to
observe and perform properly each and every covenant of this Servicing Agreement
and/or any applicable Exhibit to the Agreement, or (b) by the Servicer in
reliance upon information provided to the Servicer by the Mortgagee, or (c) by
Servicer in accordance with the terms hereof. Without limiting the above, the
Mortgagee shall indemnify the Servicer and shall hold the Servicer harmless from
and against any and all losses, liabilities, penalties, damages, expenses or
other harm or injury which the Servicer may incur or suffer or which may be
asserted by any person or entity, including reasonable attorneys' fees and court
costs, arising out of any Mortgage Loan or the Servicing Rights relating to such
Mortgage Loan which result from
(a) The failure of any prior servicer of a Mortgage Loan to perform servicing
obligations in accordance with the standards set forth in this Servicing
Agreement for any Mortgage Loan transferred from a prior servicer to the
Servicer.
(b) Any claim asserted by any person or entity which was not the result of any
negligence, willful misconduct, violation of law, or breach of this Servicing
Agreement by the Servicer.
(c) Any act or failure to act in connection with the origination, processing, or
closing of a Mortgage Loan, including but not limited to, the failure to provide
and/or complete the Mortgage Documents, which results in a tax penalty, tax
sale, lost Mortgage Documents and other such adverse consequences.
16.2. OTHER. Indemnification provisions of SECTION 16.1 shall apply only to
Mortgage Loans made subject to this Servicing Agreement subsequent to the
Closing Date as such term is defined in the Stock Purchase Agreement between
Grant America, Inc. (now known as HomeSide, Inc.) and Xxxxxxx Bank, Inc. dated
March 4, 1996.
16.3. SERVICER WILL INDEMNIFY MORTGAGEE. The Servicer shall indemnify the
Mortgagee and shall hold the Mortgagee harmless from and against any and all
losses, liabilities, penalties, damages, expenses or other harm or injury which
the Mortgagee may incur or suffer or which may be asserted by any person or
entity, including reasonable attorneys' fees and court costs, arising
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out of any action at any time taken or omitted to be taken (a) by the Servicer
under or in connection with this Servicing Agreement and/or any applicable
Exhibit to the Agreement, including, without limitation, any failure by the
Servicer to observe and perform properly each and every covenant of this
Servicing Agreement and/or any applicable Exhibit to the Agreement, or (b) by
the Mortgagee in reliance upon information provided to the Mortgagee by the
Servicer, or (c) by Mortgagee in accordance with the terms hereof.
17. TERM OF THIS SERVICING AGREEMENT.
This Servicing Agreement will remain in full force and effect until terminated
by either party under the terms of SECTION 18 below.
18. TERMINATION.
This Servicing Agreement may be terminated for any reason set forth in SECTION
5.7 of the Operating Agreement.
18.1. MORTGAGEE'S SALE OF MORTGAGE LOAN ASSETS. The Mortgagee may sell its
interest in any or all of the Mortgage Loans, other than the servicing rights
relating to such Mortgage Loans. The Servicer consents to the sale of all or any
part of such Mortgage Loan assets (other than the related servicing rights), as
long as:
(a) the sale of the Mortgage Loans remains subject to the terms of this
Servicing Agreement and the Servicer's rights under this Servicing Agreement,
including, but not limited to, the Servicer's continuing right to service the
Mortgage Loans and to receive the servicing fees set forth in this Servicing
Agreement, and
(b) the method of servicing the Mortgage Loans for such purchaser is
substantially the same as the servicing under this Servicing Agreement.
The Mortgagee will reimburse the Servicer for any costs or expenses incurred by
the Servicer relating to or arising out of any such sale of Mortgage Loans,
including, but not limited to, the costs of any additional reports created by
the Servicer for the Mortgagee in connection with any such sale.
18.2. SERVICER'S RESPONSIBILITIES UPON TERMINATION. The Servicer will perform
the following tasks for any Mortgage Loans affected by any termination of part
or all of this Servicing Agreement:
(a) Make a full accounting of such Mortgage Loans to the Mortgagee.
(b) Pay all amounts due and owing to the Mortgagee and/or other persons or
entities.
(c) Deliver to the Mortgagee: (i) all Mortgage Documents held by the Servicer
which are the property of the Mortgagee, (ii) a written summary of all taxes and
fire insurance premiums which have been paid by the Servicer on behalf of
Mortgagors, and (iii) such other information reasonably necessary for and
otherwise cooperate with a subsequent servicer to service the Mortgage Loans.
19. POWER OF ATTORNEY.
The Mortgagee irrevocably constitutes and appoints the Servicer and its duly
authorized officers and agents as the Mortgagee's agent and attorney-in-fact
coupled with an interest, to endorse checks and other instruments of payment and
documents with respect to the Mortgage Loans.
20. CONFIDENTIALITY.
The Mortgagee and the Servicer and their affiliates and subsidiaries will cause
their respective directors, officers, employees, agents and other authorized
representatives to hold in strict confidence, and not use or disclose to any
other party without the prior written consent of the other party, the
proprietary business procedures of the other party, the servicing fees or
prices, the policies or plans of the other party or any of its affiliates. The
Mortgagee and the Servicer agree that the terms of this Servicing Agreement,
including, but not limited to, the financial terms relating to any transaction
under this Servicing Agreement, are confidential and, except as required by law,
regulation, administrative or court order, neither party shall disclose, and
shall prevent any other person not authorized in writing by the other party from
disclosing, any such confidential information without the prior written consent
of the other party. Neither party is required to give such consent to the other
party.
21. NOTICES.
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SERVICING AGREEMENT
All notices, requests, demands and other communications which are required or
permitted to be given under this Servicing Agreement will be in writing and will
be deemed to have been duly given upon the delivery of mailing thereof, sent by
registered or certified mail, return receipt requested, postage paid or fax:
If to Servicer, to:
Xxxxxxx Xxxxxxx, Xx.
Executive Vice President
HomeSide Lending, Inc.
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000
With a copy to:
Xxxxxx J, Xxxxxx
General Counsel
HomeSide Lending, Inc.
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000
If to Mortgagee to:
Xxxx Xxxxxxxx
Chairman, President and CEO
Xxxxxxx Mortgage Company
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
With a copy to:
Xxxxx Xxxxx
Senior Counsel
Xxxxxxx Xxxxx, Inc.
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
or to such other address as the Servicer or the Mortgagee will have specified in
writing to the other.
22. EXHIBITS PART OF THIS SERVICING AGREEMENT.
The Exhibits are incorporated by reference into this Servicing Agreement, are
made a part of this Servicing Agreement, and will be binding on the Servicer and
the Mortgagee. The Exhibits to this Servicing Agreement may not be amended or
supplemented by the Servicer or the Mortgagee without the prior written
agreement of the other party.
23. ATTORNEYS' FEES AND COSTS.
If it is determined in a judicial proceeding that either party has failed under
any provision of this Servicing Agreement, and if either party will employ
attorneys or incur other expenses for the enforcement, performance, or
observance of the terms of this Servicing Agreement, then said party, to the
extent permitted by law, will be reimbursed by the losing party, for reasonable
attorneys' fees and other out-of-pocket expenses.
24. ASSIGNMENT AND DELEGATION.
Neither party may assign this Servicing Agreement, in whole or part, to any
other party without the prior written consent of the other party; except that
(i) either party may assign, in whole or in part, any of its rights under this
Servicing Agreement to any of its affiliates or subsidiaries, (ii) Servicer may
assign, in whole or in part, any of its rights under this Servicing Agreement to
secure payment of money borrowed and such assignee shall have the rights and
remedies of a secured party, and (iii) the Servicer may assign, in whole or in
part, any of its rights, pursuant to a sale of Servicing in accordance with the
provisions of SECTION 4.17 of the Operating Agreement.
The Mortgagee understands and acknowledges that the Servicer has delegated:
(a) foreclosure, bankruptcy, claims and conveyance, and other default-related
services to the Law Offices of Xxxxxx Xxxxxxx,
(b) tax xxxx procurement and tax payment services to TransAmerica Real Estate
Tax Service, Inc., and
(c) hazard insurance tracking, forced place, and other related insurance
services to American Sterling Corporation.
The Servicer shall not delegate any additional material customer service
responsibilities or duties under this Servicing Agreement without the prior
written consent of the Mortgagee. The Servicer may delegate other additional
servicing responsibilities without the approval of the Mortgagee.
25. AMENDMENT.
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SERVICING AGREEMENT
No amendment or modification to this Servicing Agreement will be valid unless
executed in writing by the Servicer and the Mortgagee.
26. WAIVER.
No waiver of any right or obligation under this Servicing Agreement by any party
on any occasion will be deemed to operate as a waiver on any subsequent
occasion.
27. PROVISIONS SEVERABLE.
If any provision of this Servicing Agreement will be held to be void or
unenforceable by any court of competent jurisdiction or any governmental
regulatory agency, such provision will be considered by all parties to be
severed from this Servicing Agreement. All remaining provisions of this
Servicing Agreement will be considered by the parties to remain in full force
and effect.
28. GOVERNING LAW.
This Servicing Agreement is entered into in the state of Florida. Its
construction and rights, remedies and obligations arising by, under, through, or
on account of it will be governed by the laws of the State of Florida excluding
its conflict of laws rules and will be deemed performable in the State of
Florida.
29. FORCE MAJEURE
Notwithstanding any language in this Servicing Agreement to the contrary,
Servicer shall not be held responsible nor subject to indemnification for any
loss suffered by Mortgagee stemming from acts or events beyond its reasonable
control, including (i) lightning, earthquakes, hurricanes or other acts of God,
as well as (ii) civil unrest, riots or war.
30. NO AGENCY OR JOINT VENTURE CREATED.
This Servicing Agreement will not be deemed to constitute the Servicer and the
Mortgagee as partners or joint venturers, nor will the Servicer or the Mortgagee
be deemed to constitute the other as its agent.
31. SUCCESSORS.
This Servicing Agreement will inure to the benefit of and be binding upon the
parties hereto and their successors and assigns. Nothing in this Servicing
Agreement expressed or implied is intended to confer on any person other than
the parties hereto and their successors and assigns, any rights, obligations,
remedies or liabilities.
32. SECTION HEADINGS.
Section headings are intended only to assist in the organization of this
Servicing Agreement and do not in any way limit or otherwise define the rights
and liabilities of the parties.
33. ENTIRE AGREEMENT.
This Servicing Agreement and the Exhibits to this Servicing Agreement constitute
the entire agreement among the parties and supersede all other prior
communications and understandings, written or oral, among the parties with
respect to the subject matter of this Servicing Agreement. There are no
contemporaneous oral agreements. Notwithstanding the above, this Servicing
Agreement is subject to the provisions of the Operating Agreement, including,
but not limited to, SECTIONS 3.3 and 3.4 thereof.
34. COUNTERPARTS.
This Servicing Agreement may be executed in multiple counterparts each of which
will be deemed an original. Regardless of the number of counterparts, the total
will constitute only one agreement.
35. PLURALS AND GENDER.
In construing the words of this Servicing Agreement, plural constructions will
include the singular, and singular constructions will include plural. No
significance will be attached to whether a pronoun is masculine, feminine, or
neuter.
IN WITNESS WHEREOF, the Servicer and the Mortgagee, as of the day first set
forth above, have caused their seals to be affixed on this instrument to be
signed on their behalf by their duly authorized officers.
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SERVICING AGREEMENT
HOMESIDE LENDING, INC.
/s/ Xxx X. Xxxxxxx
By:__________________________
_____________________________
(Print Name)
Title:_______________________
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EXHIBIT A TO SERVICING AGREEMENT
INCREMENTAL SERVICES AVAILABLE -- FEE SCHEDULE FOR PRIVATE BANK LOANS (PRIORITY SERVICES)
------------------------------------------------------------------------------------------------------------------------------------
DEPARTMENT DESCRIPTION OF SERVICES UNIT COST(1) BILLING PRIVATE BANK
FREQUENCY CONTACT
====================================================================================================================================
Customer Service/Esc. DIRECT 800 NUMBER ACCESS TO DEDICATED CSRS. Servicer will $[*]/loan/yr +
provide the Mortgagee's private banking Mortgagors with a normal servicing
dedicated 800 number staffed by representatives trained to Fee
handle the special needs of such Mortgagors. The 800 number
will by-pass the voice response unit for all incoming calls.
48 hour target response time for research items.
EXCEPTION PROCESSING FOR TAXES AND HAZARD INSURANCE. If a Included in $[*]/
renewal policy is not received by the expiration date of the loan charge
policy, a representative will contact the insurance
agent/carrier to obtain coverage information. If the
representative is unable to obtain the needed information,
the Operations Manager will be contacted to obtain
permission to send notification to the Mortgagor. A
servicing representative will request permission from the
Operations Manager, before contacting a Mortgagor, regarding
a tax delinquency. The Servicer will send the Mortgagor an
open hazard insurance items report each month.
EXCEPTION PROCESSING OF SPECIAL LOANS. The Servicer will Included in $[*]/
provide a monthly loan level detail report to the loan charge
Mortgagee's private banking department for all maturing
balloon loans beginning 6 months prior to the maturity date
of each such loan. The Servicer will obtain the Mortgagee's
approval prior to contacting the Mortgagor about the loan
maturity, accepting payments past the maturity date, or
extending the maturity date. The Servicer's representative
will work with the Mortgagee's private banking department to
modify or refinance the loan. In addition, the Servicer will
prepare special monthly or quarterly statements for those
loans requiring such statements.
EXCEPTION COLLECTION PROCESSING. A dedicated representative Included in $[*]/
will work with the Mortgagee's private banking department to loan charge
resolve delinquent accounts, or to obtain the Mortgagee's
permission to contact the Mortgagor directly. The Servicer
will mail demand letters manually when the delinquency is
greater than 90 days. The Servicer will mail demand letters
to the remainder of the portfolio on the 50th day using a
custom program. The Servicer and the Mortgagee will mutually
agree to the timing of Mortgagor notices and contacts.
Financial/Credit ADHOC FINANCIAL/CREDIT REPORTING(2) $[*]/hour Monthly
Reporting
------------------------------------------------------------------------------------------------------------------------------------
All other fees described in EXHIBIT B to the Servicing Agreement will be charged
to private banking Mortgage Loans, as applicable.
(1) At the 3-year anniversary of this Servicing Agreement and every 3 years
afterwards, the Servicer will adjust the unit costs according to changes in the
Consumer Price Index over the prior 3 years. Such change will be based upon the
most recently published Consumer Price Index.
(2) The list of standard reports is set forth in EXHIBIT D to this Servicing
Agreement.
------------------------
* Confidential treatment requested. Confidential portion has been filed
separately with the Commission.
13
EXHIBIT B TO THE SERVICING AGREEMENT
I. BASE SERVICING FEES -- PORTFOLIO LOANS (INCLUDING THE PRIVATE BANK)
------------------------------------------------------------------------------------------------------------------------------------
FEE DESCRIPTION AMOUNT OR PERCENTAGE OF FEE BILLING
FREQUENCY
====================================================================================================================================
All base servicing fee rates for all Mortgage The same amount and percentage in effect as of the
Loans which were serviced by the Mortgagee business day immediately preceding the effective Monthly
prior to the effective date of this Servicing date of this Servicing Agreement (minimum of [*]%
Agreement. for fixed rate Mortgage Loans and [*]% for
adjustable rate Mortgage Loans).
Servicing Fee for each fixed rate A and A- [*]% per annum Monthly
conventional fixed rate 1st Mortgage Loans
(including, but not limited to, FHA and VA
Mortgage Loans).
Servicing Fee for each fixed rate A and A- [*]% per annum Monthly
CRA/low-to-moderate income 1st Mortgage Loans
(including, but not limited to, FHA and VA
Mortgage Loans).
Servicing fee for each A and A- paper [*]% per annum Monthly
conventional ARM 1st Mortgage Loans
(including, but not limited to, FHA and VA
Mortgage Loans).
Servicing Fee for non-conforming less than A- To be determined. To be determined
quality Mortgage Loans and other (Not to exceed [*]% per annum.)
non-conforming Mortgage Loans.
II. INCREMENTAL SERVICES FEE SCHEDULE -- PORTFOLIO LOANS (INCLUDING THE PRIVATE BANK)
------------------------------------------------------------------------------------------------------------------------------------
DEPARTMENT DESCRIPTION OF SERVICES Unit Cost(1) or BILLING MORTGAGE
Amount/ FREQUENCY CONTACT
Percentage of
Fee
====================================================================================================================================
REO SERVICING: Fee for managing, protecting, [*]% of On the sale date
renting and disposing of Mortgaged Property Mortgaged of the Mortgaged
which has been foreclosed, abandoned or Property Sales Property
received by deed in lieu of foreclosure or Price
otherwise placed into the possession of the
Servicer.
Fee for initiating and conducting proceedings [*]% of any Upon Servicer's
to obtain a deficiency judgment against a deficiency collection.
Mortgagor in default. balances
collected from
the Mortgagor.
------------------------------------------------------------------------------------------------------------------------------------
(1) At the 3-year anniversary of this Servicing Agreement and every 3 years
afterwards, the Servicer will adjust the unit costs according to changes in the
Consumer Price
------------------------
* Confidential treatment requested. Confidential portion has been filed
separately with the Commission.
14
Index over the prior 3 years. Such change will be based upon the
most recently published Consumer Price Index.
15
EXHIBIT B TO THE SERVICING AGREEMENT (CONTINUED)
II. INCREMENTAL SERVICES FEE SCHEDULE -- PORTFOLIO LOANS (INCLUDING THE PRIVATE BANK)
------------------------------------------------------------------------------------------------------------------------------------
DEPARTMENT DESCRIPTION OF SERVICES UNIT COST(1) OR AMT/ BILLING MORTGAGE
% OF FEE FREQUENCY CONTACT
====================================================================================================================================
Default Management PRESALE - LOSS MITIGATION: The Servicer will cause an $[*]/loan(2) Monthly
appraisal of the Mortgaged Property to be made if the
Servicer determines that the Mortgagor has experienced a
financial hardship beyond his/her control. If the Mortgaged
Property's value is less than the amount of the debt, a
presale may be appropriate. A servicing representative will
work with the Mortgagor's real estate agent to obtain the
best possible sales price and will request the investor's
approval of the sale. The entire process will be closely
monitored through receipt of the payoff funds. If a
reasonable purchase offer has not been made after the
Mortgagor has been in the presale program for a minimum of 3
months, the Servicer mat recommend a deed in lieu of
foreclosure.
Default Management DEED IN LIEU - LOSS MITIGATION. The Servicer may determine $[*]/loan(2) Monthly
that it is in the Mortgagee's best interests to accept a
deed in lieu of foreclosure if: (a) the Mortgagor has
experienced financial hardships beyond his/her control, and
(b) foreclosure appears inevitable, and (c) there is
little/no equity on the Mortgaged Property. A servicing
representative will ask the Servicer's foreclosure attorney
to prepare an estopple letter and a deed for the Mortgagor's
signature. The Servicer will refer the Mortgaged Property to
OREO for disposition after the deed has been executed and
recorded.
Default Management MODIFICATION-LOSS MITIGATION: The Servicer will obtain a $[*]/loan(2) Monthly
title update to locate any additional liens on the Mortgaged
Property if the Servicer determines that the Mortgagor has
experienced financial hardships beyond his/her control. The
Servicer will thoroughly review the Mortgage Loan terms to
determine if a change in the interest rate, maturity date,
principal and interest payment, or capitalization of
arrearages will be most beneficial to the Mortgagor and the
Mortgagee. The Servicer may refer the Mortgagor to the
presale program if modification is inappropriate.
Custodial Liaison Bond loan follow-up $[*]/loan(1) Monthly
Custom Report: Ad hoc reports $[*]/hour Monthly
Financial/Credit Report DEVELOPMENT(1),(3)
Acquisitions, Sales or Senior manager $[*]/hour(1) + Monthly
Special Projects out-of-pocket
expenses
Middle manager $[*]/hour(1) + Monthly
out-of-pocket
expenses
(1) At the 3-year anniversary of this Servicing Agreement and every 3 years
afterwards, the Servicer will adjust the unit costs according to changes in the
Consumer Price Index over the prior 3 years. Such change will be based upon the
most recently published Consumer Price Index.
(2) Will change as standard FNMA fee changes.
(3) See EXHIBIT D for a list of standard reports.
------------------------
* Confidential treatment requested. Confidential portion has been filed
separately with the Commission.
16
EXHIBIT B TO THE SERVICING AGREEMENT (CONTINUED)
II. INCREMENTAL SERVICES FEE SCHEDULE -- PORTFOLIO LOANS (INCLUDING THE PRIVATE BANK)
------------------------------------------------------------------------------------------------------------------------------------
DEPARTMENT DESCRIPTION OF SERVICES UNIT COST(1) OR BILLING MORTGAGE
AMOUNT/ PERCENTAGE FREQUENCY CONTACT
OF FEE
====================================================================================================================================
Acquisitions, Sales and/or Support exempt personnel $[*]/hour(1) + Monthly
Special Projects (continued) out-of-pocket
expenses
Support non-exempt personnel $[*]/hour(1) + Monthly
out-of-pocket
expenses
ARM note review(4) $[*]/loan(1) + Per bulk
out-of-pocket acquisition
expenses
Audit historical adjustments if errors(4) $[*]/loan(1) Per bulk
acquisition
INCOMPLETE LOAN DOCUMENTATION(5): Covers title $[*]/loan(1) Quarterly
search, document recreation on Portfolio
Mortgage Loans with missing documents and/or
missing recording information.
Document Services Paper retrieval requests-per document $[*]/ request(1) Monthly
Document Services Film retrieval request - on paper $[*]/ request(1) Monthly
Document Services Whole File Copy $[*]/loan file(1) Monthly
Document Services Rush document request - same day/next day $[*] next day(1) Monthly
$[*] same day(1)
(1) At the 3-year anniversary of this Servicing Agreement and every 3 years
afterwards, the Servicer will adjust the unit costs according to changes in the
Consumer Price Index over the prior 3 years. Such change will be based upon the
most recently published Consumer Price Index.
(4) The Servicer will place all key data relating to the current status of the
ARM loan, together with the original loan information, into a worksheet. The
Servicer will obtain the key Mortgage Loan documents and compare the information
in the Mortgage Note with the information in the worksheet to verify the
accuracy of the Mortgage Loan set-up.
(5) An impasse occurs in various servicing areas when key Mortgage Loan
documents are missing from the Mortgage loan file. The Servicer's customer
service department is then unable to resolve Mortgagor disputes concerning
Mortgage Loan amortization, origination, or maturity dates, verify specific
servicing requirements set forth in the individual documents, etc. The
Servicer's special loan department is unable to complete the audit of the ARM
loan accounts because vital information cannot be verified. The Servicer's
paid-in-full department is unable to discharge liens when recording information
is unavailable or when Mortgage Loan documents are missing that create a clear
chain of title. A title search or other necessary documentation will be ordered
to recreate a loan file.
------------------------
* Confidential treatment requested. Confidential portion has been filed
separately with the Commission.
17
EXHIBIT B TO THE SERVICING AGREEMENT (CONTINUED)
II. INCREMENTAL SERVICES FEE SCHEDULE -- PORTFOLIO LOANS (INCLUDING THE PRIVATE BANK)
------------------------------------------------------------------------------------------------------------------------------------
DEPARTMENT DESCRIPTION OF SERVICES UNIT COST(1) BILLING MORTGAGE
OR AMOUNT/ FREQUENCY CONTACT
PERCENTAGE OF
FEE
====================================================================================================================================
Escrow Escrow waiver fee. (Based on Mortgagor and [*]% of Monthly Collected from
Mortgagee requests.) principal Mortgagor
balance
Escrow Life of loan flood contract conversion fee. $[*]/contract(1)
(Convert flood certification to
life of loan coverage.)
Loan Modifications Principal and interest adjustment based on $[*]/adjustment(1) Collected from
principal curtailment Mortgagor
Loan Modifications Partial release Based on FNMA Collected from
guidelines/fees Mortgagor
Special Loans Track and convert maturing balloon loans (Fee Based on loan
retained by the Servicer) documentation
(1) At the 3-year anniversary of this Servicing Agreement and every 3 years
afterwards, the Servicer will adjust the unit costs according to changes in the
Consumer Price Index over the prior 3 years. Such change will be based upon the
most recently published Consumer Price Index.
------------------------
* Confidential treatment requested. Confidential portion has been filed
separately with the Commission.
