EXECUTION COPY
SUBSERVICING AGREEMENT
SUBSERVICING AGREEMENT dated as of November 1, 1998 by and among
ContiMortgage Corporation, a Delaware corporation (the "Servicer"), ContiWest
Corporation, a Nevada corporation, ContiSecurities Asset Funding Corp., a
Delaware corporation (the "Depositor"), Continental Grain Company, a Delaware
corporation (the "Subservicer") and Manufacturers and Traders Trust Company, a
New York banking corporation (the "Trustee"), in its capacity as Trustee under
various Pooling and Servicing Agreements listed on the attached Schedule A,
which Schedule may be amended from time to time by delivery of notice thereof to
the parties hereto and to the related Certificate Insurers (the "Pooling
Agreements") and on behalf of the related securitization trusts (the "Trusts")
formed pursuant to the Pooling Agreements.
WHEREAS, the Servicer and the Trustee have previously entered into
the Pooling Agreements, among the Servicer, the Trustee, the Depositor and the
other parties named therein pursuant to which the Servicer is to act as servicer
to service and administer certain mortgage loans (the "Mortgage Loans") owned by
the Trusts in accordance with the Pooling Agreements;
WHEREAS, the Servicer, pursuant to Section 8.03 of the Pooling
Agreements, desires to appoint the Subservicer to perform certain of the
Servicer's servicing obligations under the Pooling Agreements;
WHEREAS, the Depositor on behalf of the Trusts desires the
Subservicer to perform certain of the Servicer's servicing obligations to
benefit the Trusts; and
WHEREAS, the Trusts wish to obtain the benefit of the subservicing
arrangements to be provided by the Subservicer.
NOW, THEREFORE, in consideration of the premises and mutual
covenants hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
DEFINITIONS
Definitions. The following terms have the following meanings when
used in this Agreement.
"Agreement" means this Subservicing Agreement, and all amendments
hereof and supplements hereto.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banking institutions in The City of New York, or in the
city in which the principal corporate trust office of the Trustee is located,
are authorized or obligated by law or executive order to be closed, and when
used with reference to the determination of LIBOR, shall also exclude any day on
which banks are not open for dealings in dollar deposits in the London interbank
market.
"Delinquency Advances" with respect to any Trust, has the meaning
set forth in the related Pooling Agreement.
"Depositor" has the meaning set forth in the introductory paragraph
hereto.
"LIBOR" means, with respect to any period commencing on a Monthly
Remittance Date and ending on the day before the next Monthly Remittance Date,
the rate of interest (calculated on a per annum basis) equal to the one month
London Interbank Offered Rate as reported on the display designated as "Page
3750" on the Telerate Service (or such other display as may replace Page 3750 on
the Telerate Service) on the related LIBOR Determination Date.
"LIBOR Determination Date" means, with respect to any period
commencing on a Monthly Remittance Date and ending on the day before the next
Monthly Remittance Date, the second Business Day prior to such earlier Monthly
Remittance Date.
"Monthly Remittance Date" means the 10th day of each month or, if
such day is not a Business Day, the Business Day succeeding such day.
"Mortgage Loans" has the meaning set forth in the first WHEREAS
clause in the Recitals.
"Person" means any legal person, including any individual,
corporation, limited liability company, partnership, joint venture, association,
joint stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Pooling Agreements" has the meaning set forth in the introductory
paragraph hereto.
"Reimbursement Available Funds" has the meaning set forth in Section
2.03(b) hereof.
"Right" has the meaning set forth in Section 6.02 hereof.
"Servicer" has the meaning set forth in the introductory paragraph
hereto.
"Subservicer" has the meaning set forth in the introductory
paragraph hereto.
"Subservicer Advance" has the meaning set forth in Section 2.02(a)
hereof.
"Subservicer Advance Notice" has the meaning set forth in Section
2.02(b) hereof.
"Subservicing Fee" has the meaning set forth in Section 2.03(a)
hereof.
"Trustee" has the meaning set forth in the introductory paragraph
hereto
"Trusts" has the meaning set forth in the introductory paragraph
hereto.
Other Terms. Capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the related Pooling Agreements.
THE SERVICER AND THE SUBSERVICER
Appointment of the Subservicer; Direction to Trustee. Pursuant to
the Pooling Agreements, the Servicer and the Trusts hereby appoint the
Subservicer to perform certain of the Servicer's servicing obligations under the
Pooling Agreements as set forth in Section 2.02 hereof, which appointment the
Subservicer hereby accepts. The Subservicer agrees to perform the obligations
set forth in Section 2.02 hereof in accordance with the servicing standards set
forth in the Pooling Agreements. The Subservicer undertakes no obligations of
the Servicer under the Pooling Agreements other
than those expressly set forth in Section 2.02 hereof. Nothing in this Agreement
shall relieve the Servicer of its obligations under the Pooling Agreements or in
any way limit such obligations.
The Depositor hereby directs the Trustee to execute and deliver this
Agreement on behalf of each Trust.
Obligations of the Subservicer.
(a) The Subservicer hereby agrees to advance, until such advancing
obligation terminates pursuant to Section 4.01(a) hereof, to the Trustee on
behalf of the Trusts, on a Trust-by-Trust basis, on each Monthly Remittance
Date, an amount (the "Subservicer Advance") equal to the Delinquency Advance (if
any) for each Trust for such Monthly Remittance Date, provided that, in no event
shall the Subservicer be required to advance on any Monthly Remittance Date
aggregate Subservicer Advances for all Trusts in excess of $85,000,000, less the
amount of any outstanding unreimbursed Subservicer Advances. In the event that
the aggregate Subservicer Advances which Subservicer makes on any Monthly
Remittance Date are less than the aggregate Delinquency Advances required to be
made to the Trusts on that Monthly Remittance Date under the Pooling Agreements,
then the Subservicer shall allocate the Subservicer Advances among the Trusts
pro rata to the Delinquency Advances for each Trust, and the difference between
the Subservicer Advance and the total Delinquency Advance shall be advanced to
the Trust by the Servicer as a Delinquency Advance. The parties hereto agree
that if the Servicer is not required to advance any portion of a Delinquency
Advance as set forth in the relevant sections of the Pooling Agreements, then
the Subservicer shall likewise not be required to make any Subservicer Advance
with respect thereto.
(b) No later than Noon on the Business Day preceding each Monthly
Remittance Date the Servicer shall deliver to the Subservicer and the Trustee a
notice (the "Subservicer Advance Notice"), in the form of Exhibit I hereto,
setting forth the amount of the Subservicer Advance, if any due on such Monthly
Remittance Date.
Subservicing Fee; Reimbursement for Subservicer Advances; Priority.
(a) As compensation for the rendering of the services specified
herein, the Subservicer shall be entitled to receive a subservicing fee (the
"Subservicing Fee") from each Trust. The Subservicing Fee for any period shall
equal the product of (i) LIBOR plus 000 xxxxx xxxxxx, (xx) 0/000, (xxx) the
number of days in the period, and (iv) the average amount of unreimbursed
Subservicer Advances during the period. In no event shall the Subservicing Fee
payable to the Subservicer for any month exceed the Servicing Fee payable to the
Servicer. The amount of any Subservicer Fee paid to the Subservicer shall
reduce, dollar-for-dollar, the amount of the Servicing Fee payable to the
Servicer.
(b) (i) The Servicer collects principal, interest and certain fees
on the Mortgage Loans, as agent for and on behalf of the Trusts pursuant to and
in accordance with the Pooling Agreements. The portion of these collections that
is
available, in accordance with the terms and provisions of the Pooling
Agreements, for the reimbursement of Delinquency Advances and the payment of the
Servicing Fee is referred to herein as the "Reimbursement Available Funds." The
Reimbursement Available Funds are owned by and are the property of, the related
Trusts.
(ii) The Servicer agrees that it shall have no claim against the
Trusts to receive or retain any portion of the reimbursement for Subservicer
Advances. The Subservicer acknowledges that the Servicer, in paying the
Subservicing Fee and such reimbursement amounts to the Subservicer, is paying
such amounts on behalf of the Trusts only, solely from funds and assets of the
Trust, and is not liable to the Subservicer to pay any such amounts from its own
funds. The parties hereto agree that the Servicer shall be acting in the
capacity as agent of the Trusts when it performs its collection duties in
accordance with the Pooling Agreements and remittance duties hereunder.
(c) On each Business Day, the Subservicer shall be paid, by
remittance by the Servicer acting as an agent of the Trusts, out of the
Reimbursement Available Funds, available on that day, an amount equal to any
accrued but unpaid Subservicing Fee through the end of the prior day. After
payment of the Subservicing Fee, the Servicer shall be paid, by remittance by
the Servicer acting as an agent of the Trusts, out of the Reimbursement
Available Funds an amount equal to any accrued but unpaid Servicing Fee. The
excess of the Subservicer Fee due on any Business Day over the amount of
Subservicer Fee actually paid on such Business Day shall be carried forward and
shall be paid first out of the Reimbursement Available Funds before any other
amounts are paid under this subsection on each Business Day thereafter until
such carried-forward amounts are paid in full.
(d) On each Business Day, following the payment of the Subservicing
Fee and the Servicing Fee, the remaining amount, if any, of available
Reimbursement Available Funds shall be used to reimburse the Subservicer, by
remittance by the Servicer acting as an agent of the Trusts, for Subservicer
Advances made by the Subservicer and the Servicer for Delinquency Advances made
by the Servicer through the prior day. Prior to the termination pursuant to
Section 4.01(a) of the Subservicer's obligation to advance, the remaining
Reimbursement Available Funds shall be reimbursed to the Subservicer and the
Servicer in the proportion that the outstanding unreimbursed Subservicer
Advances made by the Subservicer bear to the outstanding unreimbursed
Delinquency Advances made by the Servicer. After the Subservicer's obligations
to advance have been terminated pursuant to Section 4.01(a) hereof, all
remaining Reimbursement Available Funds shall first be used to reimburse the
Subservicer for outstanding unreimbursed Subservicer Advances.
(e) Notwithstanding anything herein to the contrary, the parties
hereto agree that the sum of (i) the Subservicing Fee paid to the Subservicer,
plus (ii) the Servicing Fee paid to the Servicer, shall never exceed the
Servicing Fee which would otherwise be payable under the terms of the Pooling
Agreements, if the effect of this Agreement were not taken into account.
Notwithstanding anything herein to the contrary, the parties hereto agree that
the sum of (i) any reimbursement for Subservicer Advances made by the
Subservicer, plus (ii)
any reimbursement for Delinquency Advances made by the Servicer, shall never
exceed the reimbursement for Delinquency Advances which would otherwise be
payable under the terms of the Pooling Agreements, if the effect of this
Agreement were not taken into account.
REPRESENTATIONS, WARRANTIES AND COVENANTS
Representations, Warranties and Covenants of the Subservicer. The
Subservicer hereby represents and warrants to the Trustee as follows:
(a) The Subservicer is a Delaware corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is in compliance with the laws of each state necessary to enable it to
perform its obligations under the terms of this Agreement; the Subservicer 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 by the Subservicer 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 Subservicer; and
all requisite corporate action has been taken by the Subservicer to make this
Agreement valid and binding upon the Subservicer in accordance with its terms;
(b) Neither the execution and delivery of this Agreement, 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 Subservicer's charter or by-laws or any material agreement or
instrument to which the Subservicer 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 Subservicer or its property is subject;
(c) There is no action, suit, proceeding, or investigation pending
or, to the knowledge of the Subservicer, threatened against the Subservicer
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 Subservicer, or in any material impairment of the
right or ability of the Subservicer to carry on its business, or of any action
taken or to be taken in connection with the obligations of the Subservicer
contemplated herein, or which would materially impair the ability of the
Subservicer to perform under the terms of this Agreement; and
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Subservicer of or compliance by the Subservicer with this
Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such approval has been obtained prior to the date
hereof.
Representations, Warranties and Covenants of the Servicer. The
Servicer hereby represents and warrants to the Subservicer and the Trustee as
follows:
(a) The Servicer is a Delaware corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and is in
compliance
with the laws of each state necessary to enable it to perform its obligations
under 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 by the
Servicer 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 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;
(b) Neither the execution and delivery of this Agreement, 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 by-laws or any material 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;
(c) There is no action, suit, proceeding, or investigation pending
or, to the knowledge of the Servicer, 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, properties or
assets of the Servicer, or in any material impairment of the right or ability of
the Servicer to carry on its business substantially as now conducted, or of any
action taken or to be taken in connection with the obligations of the Servicer
contemplated herein, or which would materially impair the ability of the
Servicer to perform under the terms of this Agreement; and
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer of or compliance by the Servicer with this Agreement
or the consummation of the transactions contemplated by this Agreement, or if
required, such approval has been obtained prior to the date hereof.
REMOVAL; RESIGNATION; MERGER; ASSIGNMENT
Term of Agreement; Termination of Subservicing.
(a) (i) The Subservicer's obligation to make Subservicer Advances
hereunder shall terminate on October 15, 1999 except as such obligation may be
terminated earlier as set forth in this Section 4.01(a) and such obligation may
be extended if agreed to in writing by the Servicer and the Subservicer, with
notice given to the other parties hereto and the related Certificate Insurers.
The Servicer may terminate the Subservicer upon five days prior written notice
to each of the other parties hereto and the related Certificate Insurers, and
upon such termination the Subservicer's obligation to make Subservicer Advances
shall simultaneously terminate. In the event that the Servicer resigns or is
terminated pursuant to the terms of the Pooling Agreements, (x) the Trustee or a
successor servicer may terminate the Subservicer without payment of any fee and
upon such termination the Subservicer's obligation to make Subservicer Advances
shall
simultaneously terminate or (y) the Subservicer may immediately terminate its
obligation to make Subservicer Advances upon notice to the parties hereto and
the related Certificate Insurers.
(ii) In the event that the Subservicer fails to timely receive
any amounts due and payable to it from any Trust, the Subservicer may terminate
its obligation to make Subservicer Advances upon five days notice to each of the
other parties hereto and the related Certificate Insurers.
(b) Notwithstanding any termination of the Subservicer's advancing
obligation, the Subservicer's right to reimbursement for unpaid Subservicing
Fees and unreimbursed Subservicer Advances shall survive any such termination
until such amounts have been paid in full. Following any termination of the
Subservicer hereunder, the Servicer (or, if applicable, the successor Servicer
appointed pursuant to the related Pooling Agreement) shall, on behalf of the
related Trust, be required to continue to remit to the Subservicer amounts due
to it in respect of unpaid Subservicing Fees and unreimbursed Subservicer
Advances, as calculated in and provided by Article II hereof until such amounts
have been paid in full.
Merger or Consolidation of the Subservicer. The Subservicer may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets to any Person, in which case any Person resulting from any
merger or consolidation to which the Subservicer shall be a party, or any Person
succeeding to the business of the Subservicer, shall be the successor of the
Subservicer, as the case may be, hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereof, anything
herein to the contrary notwithstanding; provided, however, that the successor or
surviving Person to the Subservicer shall be qualified to act as a subservicer
in accordance with Section 8.03 of the Pooling Agreements.
Assignment. With the prior written consent of the Servicer and the
Certificate Insurer with respect to the related Trust, the Subservicer may
assign its rights and obligations hereunder to any institution which qualifies
as a "Subservicer" under each Pooling Agreement.
LIMITATION ON LIABILITY; INDEMNIFICATION
Limitation on Liability of the Subservicer; Indemnification.
(a) The Subservicer and any director, officer, employee or agent of
the Subservicer may rely in good faith on any document of any kind which, prima
facie, is properly executed and submitted by any Person respecting any matters
arising thereunder. The Subservicer and any director, officer, employee or agent
of the Subservicer shall be indemnified and held harmless by the Servicer
against any loss, liability or expense incurred in connection with any legal
action relating to this Agreement or the Pooling Agreements, other than any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or gross negligence in the performance of its duties hereunder.
(b) To the extent that the Subservicer incurs any loss, liability or
expense arising out of or in connection with this Agreement, the Servicer hereby
assigns to the Subservicer the Servicer's right to indemnification from the
Trust Estate
pursuant to Section 8.05 of the Pooling Agreements; provided, however, that in
the event the Servicer seeks indemnification pursuant to Section 8.05 of the
Pooling Agreements for itself from the Trust Estate, the Subservicer shall be
indemnified pursuant to clause (a) hereof.
(c) The Subservicer shall not be under any obligation to appear in,
prosecute or defend any legal action, unless such action is directly related to
its duties under this Agreement and in its opinion, does not involve it in any
expense or liability; provided, however, that the Subservicer may in its
discretion undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights and duties of the parties hereto.
In such event, pursuant to clause (b) above, the legal expenses and costs of
such action and any liability resulting therefrom (except any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or gross negligence
in the performance of duties hereunder) shall be expenses, costs and liabilities
of either the Servicer or the Trust Estate. In the case of such reimbursement
from the Trust Estate, the Subservicer shall be entitled to be reimbursed
therefor only from the amounts otherwise distributable on the Class R
Certificates as and to the extent provided in Section 8.05 of the Pooling
Agreements, any such right of reimbursement being prior to the rights of the
Class R Certificateholders to receive any such amount.
Indemnification of the Trustee. The Trustee and any director,
officer, employee or agent of the Trustee shall be indemnified and held harmless
by the Servicer against any loss, liability or expense incurred in connection
with any legal action relating to this Agreement or the Pooling Agreements,
other than any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence by the Trustee or by reason of
reckless disregard of its obligations and duties hereunder.
MISCELLANEOUS
Inconsistencies with Pooling Agreements; Amendment to Subservicing
Agreement and the Pooling Agreements.
(a) This Agreement may be amended from time to time by written
agreement signed by the parties hereto.
(b) The Servicer hereby agrees that it shall not amend the Pooling
Agreements in any way that would affect the rights or obligations of the
Subservicer hereunder without the prior written consent of the Subservicer.
(c) In the event that this Agreement is determined to constitute an
amendment to the Pooling Agreements, then this Agreement shall be deemed to
amend the Pooling Agreement as follows: (i) The Servicer, the Trustee and the
Trust may enter into Sub-servicing Agreements with a Person meeting the
qualifications set forth in the Pooling Agreement and may have obligations under
such agreement with respect to the subservicer including without limitation the
obligation to make reimbursements for Delinquency Advances and to pay the
Servicing Fee, provided that such obligations do not exceed the obligations
otherwise set forth in the Pooling Agreements with respect to the Servicer; and
(ii) Continental Grain Company and any other Person to which the Servicer, the
Trustee and the Certificate Insurer have consented in writing shall be eligible
to act as a sub-servicer notwithstanding anything to the contrary therein.
Indulgences, Etc. Neither the failure nor any delay on the part of
any party to exercise any right, remedy, power or privilege (each, a "Right")
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any Right preclude any other or further exercise of the same
or of any other Right, nor shall any waiver of any Right with respect to any
occurrence be construed as a waiver of such Right with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed
by the party asserted to have granted such waiver.
Controlling Law; Jurisdiction.
(a) This Agreement and all questions relating to its validity,
interpretation, performance and enforcement (including, without limitation,
provisions concerning limitations of actions), shall be governed by and
construed in accordance with the laws of the State of New York, notwithstanding
any conflict-of-laws doctrines of the State of New York or other jurisdictions
to the contrary, and without the aid of any canon, custom or rule of law
requiring construction against the draftsman.
(b) The parties hereto hereby irrevocably submit to the jurisdiction
of the United States District Court for the Southern District of New York and
any court in the State of New York located in the City and County of New York,
and any appellate court from any thereof, in any action, suit or proceeding
brought against it or in connection with this Agreement or any of the related
documents or the transactions contemplated hereunder or for recognition or
enforcement of any judgment, and the parties hereto hereby irrevocably and
unconditionally agree that all claims in respect of any such action or
proceeding may be heard or determined in such New York State court or, to the
extent permitted by law, in such federal court. The parties hereto agree that a
final judgment in any such action, suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. To the extent permitted by applicable law, the parties
hereto hereby waive and agree not to assert by way of motion, as a defense or
otherwise in any such suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of such courts, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that the related documents or the subject
matter thereof may not be litigated in or by such courts.
Waiver of Jury Trial. Each of the parties hereby irrevocably waives
all right to a trial by jury in any action, proceeding or counterclaim arising
out of or relating to this Agreement, any other transaction document or any
instrument or document delivered hereunder or thereunder.
Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received only when delivered
(personally, by courier service such as FedEx, or by other messenger) against
receipt or three days after when deposited in the United States mails, first
class postage prepaid, addressed as set forth below:
(i) If to Servicer:
ContiMortgage Corporation
One Xxxxx Park
000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Senior Vice President
and Chief Counsel
Telephone:(000) 000-0000
Fax:(000) 000-0000
(ii) If to Subservicer:
Continental Grain Company
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Corporate Vice President
and Chief Legal Counsel
Telephone:(000) 000-0000
Fax:(000) 000-0000
(iii) If to the Trustee:
Manufacturers and Traders Trust Company
One M&T Xxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Telephone:(000) 000-0000
Fax:(000) 000-0000
Attention: Corporate Trust Administration
In addition, notice by mail shall be by air mail if posted outside
of the continental United States. Any party may alter the address to which
communications or copies are to be sent by giving notice of such change of
address in conformity with the provisions of this paragraph for the giving of
notice.
Binding Nature of Agreement. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective permitted
successors and assigns notwithstanding any provision of any Pooling Agreement
that might deem this Agreement to be binding only upon the Servicer or
Subservicer.
Provisions Separable. The provisions of this Agreement are
independent of and separate from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
Counterparts. For the purpose of facilitating the execution of this
Agreement and or other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which shall be deemed to be an original,
and together shall constitute and be one and the same instrument.
Entire Agreement; Amendment of this Agreement. This Agreement
contains the entire understanding between the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous agreements
and understandings, inducements or conditions, express or implied, oral or
written, except as herein contained. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof.
This Agreement may not be modified or amended other than by an agreement in
writing. This Agreement may not be amended in a manner adverse to the interests
of the related Certificate Insurers without the prior written consent of such
related Certificate Insurers.
Paragraph Headings. The paragraph headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
Advice from Counsel. The parties understand that this Agreement is a
legally binding agreement that may affect such party's rights. Each party
represents to the other that it has received legal advice from counsel of its
choice regarding meaning and legal significance of this Agreement and that it is
satisfied with its legal counsel and the advice received from it.
Judicial Interpretation. Should any provision of this Agreement or
any of the other transaction documents require judicial interpretation, it is
agreed that a court interpreting or construing the same shall not apply a
presumption that the terms hereof shall be more strictly construed against any
Person by reason of the rule of construction that a document is to be construed
more strictly against the Person who itself or through its agent prepared the
same, it being agreed that all Parties have participated in the preparation of
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their proper and duly authorized officers as of the
date first above written.
CONTIMORTGAGE CORPORATION,
as Servicer and as Seller
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Senior Vice President
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Senior Vice President CONTINENTAL
GRAIN COMPANY, as Subservicer
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
CONTISECURITIES ASSET FUNDING CORP.,
as Depositor
By: /s/ Xxxx Xxxx
---------------------------------------
Name: Xxxx Xxxx
Title: Authorized Signatory
By: /s/ Xxx Xxxxx
---------------------------------------
Name: Xxx Xxxxx
Title: Authorized Signatory
CONTIWEST CORPORATION,
as Seller
By: /s/ Xxx Xxxxxxx
---------------------------------------
Name: Xxx Xxxxxxx
Title: Vice President
By: /s/ Xxxx Xxxx
---------------------------------------
Name: Xxxx Xxxx
Title: Assistant Secretary
[Signature Page to Subservicing Agreement]
MANUFACTURERS AND TRADERS
TRUST COMPANY,
as Trustee and on behalf of the Trusts
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
For the purpose of Section 6.01(c)
only and as to acceptability of
Subservicer under the related
Pooling Agreements
CONSENTED TO BY:
MBIA INSURANCE CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President and Manager
FINANCIAL GUARANTY INSURANCE COMPANY
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
[Signature Page to Subservicing Agreement-con't]
SCHEDULE A
List of Pooling Agreements
SERIES POOLING AGREEMENT
1994-3 Pooling and Servicing Agreement, dated as of June 1, 1994,
among ContiSecurities Asset Funding Corp., as Depositor,
ContiMortgage Corporation, as Servicer and as Seller and
Manufacturers and Traders Trust Company, as Trustee
1994-4 Pooling and Servicing Agreement, dated as of August 1, 1994,
among ContiSecurities Asset Funding Corp., as Depositor,
ContiMortgage Corporation, as Servicer and as Seller and
Manufacturers and Traders Trust Company, as Trustee
1994-5 Pooling and Servicing Agreement, dated as of December 1,
1994, among ContiSecurities Asset Funding Corp., as
Depositor, ContiMortgage Corporation, as Servicer and as
Seller and Manufacturers and Traders Trust Company, as
Trustee
1995-1 Pooling and Servicing Agreement, dated as of March 1, 1995,
among ContiSecurities Asset Funding Corp., as Depositor,
ContiMortgage Corporation, as Servicer and as Seller and
Manufacturers and Traders Trust Company, as Trustee
1995-2 Pooling and Servicing Agreement, dated as of May 1, 1995,
among ContiSecurities Asset Funding Corp., as Depositor,
ContiMortgage Corporation, as Servicer and as Seller and
Manufacturers and Traders Trust Company, as Trustee
1995-3 Pooling and Servicing Agreement, dated as of August 1, 1995,
among ContiSecurities Asset Funding Corp., as Depositor,
ContiMortgage Corporation, as Servicer and as Seller and
Manufacturers and Traders Trust Company, as Trustee
1995-4 Pooling and Servicing Agreement, dated as of November 1,
1995, among ContiSecurities Asset Funding Corp., as
Depositor, ContiMortgage Corporation, as Servicer and as
Seller and Manufacturers and Traders Trust Company, as
Trustee
1996-1 Pooling and Servicing Agreement, dated as of February 1,
1996, among ContiSecurities Asset Funding Corp., as
Depositor, ContiMortgage Corporation, as Servicer and as
Seller and Manufacturers and Traders Trust Company, as
Trustee
1996-2 Pooling and Servicing Agreement, dated as of June 1, 1996,
among ContiSecurities Asset Funding Corp., as Depositor,
ContiMortgage Corporation, as Servicer and as Seller and
Manufacturers and Traders Trust Company, as Trustee
1996-3 Pooling and Servicing Agreement, dated as of August 1, 1996,
among ContiSecurities Asset Funding Corp., as Depositor,
ContiMortgage Corporation, as Servicer and as Seller and
Manufacturers and Traders Trust Company, as Trustee
1996-4 Pooling and Servicing Agreement, dated as of December 1,
1996, among ContiSecurities Asset Funding Corp., as
Depositor, ContiMortgage Corporation, as Servicer and as
Seller, ContiWest Corporation, as Seller and Manufacturers
and Traders Trust Company, as Trustee
1997-1 Pooling and Servicing Agreement, dated as of February 1,
1997, among ContiSecurities Asset Funding Corp., as
Depositor, ContiMortgage Corporation, as Servicer and as
Seller, ContiWest Corporation, as Seller and Manufacturers
and Traders Trust Company, as Trustee
1997-2 Pooling and Servicing Agreement, dated as of March 1, 1997,
among ContiSecurities Asset Funding Corp., as Depositor,
ContiMortgage Corporation, as Servicer and as Seller,
ContiWest Corporation, as Seller and Manufacturers and
Traders Trust Company, as Trustee
1997-3 Pooling and Servicing Agreement, dated as of June 1, 1997,
among ContiSecurities Asset Funding Corp., as Depositor,
ContiMortgage Corporation, as Servicer and as Seller,
ContiWest Corporation, as Seller and Manufacturers and
Traders Trust Company, as Trustee
1997-4 Pooling and Servicing Agreement, dated as of September 1,
1997, among ContiSecurities Asset Funding Corp., as
Depositor, ContiMortgage Corporation, as Servicer and as
Seller, ContiWest Corporation, as Seller and Manufacturers
and Traders Trust Company, as Trustee
1997-5 Pooling and Servicing Agreement, dated as of December 1,
1997, among ContiSecurities Asset Funding Corp., as
Depositor, ContiMortgage Corporation, as Servicer and as
Seller, ContiWest Corporation, as Seller and Manufacturers
and Traders Trust Company, as Trustee
1998-1 Pooling and Servicing Agreement, dated as of March 1, 1998,
among ContiSecurities Asset Funding Corp., as Depositor,
ContiMortgage Corporation, as Servicer and as Seller,
ContiWest Corporation, as Seller and Manufacturers and
Traders Trust Company, as Trustee
1998-2 Pooling and Servicing Agreement, dated as of June 1, 1998,
among ContiSecurities Asset Funding Corp., as Depositor,
ContiMortgage Corporation, as Servicer and as Seller,
ContiWest Corporation, as Seller and Manufacturers and
Traders Trust Company, as Trustee
1998-3 Pooling and Servicing Agreement, dated as of September 1,
1998, among ContiSecurities Asset Funding Corp., as
Depositor, ContiMortgage Corporation, as Servicer and as
Seller, ContiWest Corporation, as Seller and Manufacturers
and Traders Trust Company, as Trustee
EXHIBIT I
Form of Subservicer Advance Notice
____________, ______
Continental Grain Company
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: _____________
Re: Subservicing Agreement, dated November 1, 1998;
Notice of Subservicer Advance
Pursuant to Section 2.02(b) of the Subservicing Agreement, dated as
of November 1, 1998 (the "Subservicing Agreement"), among ContiMortgage
Corporation (the "Servicer"), ContiWest Corporation, as Seller, ContiSecurities
Asset Funding Corp., as Depositor, Continental Grain Company (the "Subservicer")
and Manufacturers and Traders Trust Company (the "Trustee"), the undersigned
hereby notifies you that a Subservicer Advance in the amount of $_________ is
due on the Monthly Remittance Date occurring on ________, ______. The
computation of the amount of the Subservicer Advance is set forth below.
Sum of Interest Amount on
Remittance Amount and deposit in related Amount of
Name of Principal Remittance Principal and Delinquency Amount of
Trust Amount Interest Account Advance Subservicer Advance
--------- --------------------- ------------------ ----------- -------------------
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Totals
Please remit the amount of the Subservicer Advance directly to
Manufacturers and Traders Trust Company (the "Trustee") at the account listed
below by Noon on the Business Day preceding the Monthly Remittance Date.
To:
Account No:
Reference:
Very truly yours,
CONTIMORTGAGE CORPORATION, as Servicer
By: __________________________________
Name:
Title:
cc: Manufacturers and Traders Trust Company
Xxx X&X Xxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Tel: (716) 842--4387
Fax: (716) 842--5905
Attention: Corporate Trust Administration
