SUPPLEMENTAL SERVICING AMENDMENT
SUPPLEMENTAL SERVICING AMENDMENT dated as of November 9, 1999 by and among
ContiMortgage Corporation, a Delaware corporation (the "Servicer"), ContiWest
Corporation, a Nevada corporation, ContiSecurities Asset Funding Corp., a
Delaware corporation (the "Depositor"), Greenwich Capital Financial Products,
Inc., a Delaware corporation (the "Supplemental Servicer") and Manufacturers and
Traders Trust Company, a New York banking corporation (the "Trustee"), in its
capacity as Trustee under each of the Pooling and Servicing Agreements listed on
the attached Schedule A-1 and Schedule A-2 (the "Pooling Agreements") with
respect to the 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 the home equity loans (the "Home Equity Loans") owned by
the Trusts in accordance with the Pooling Agreements;
WHEREAS, Servicer and Continental Grain Company, among others, are party to
a Subservicing Agreement dated as of November 1, 1998 (the "Grain Subservicing
Agreement") and desire to terminate that Agreement;
WHEREAS, the Depositor, Servicer and each Trustee desire the appointment of
the Supplemental Servicer to perform the obligations under Section 2.02(a) of
this Amendment;
WHEREAS, the Certificate Insurers for each Trust, as applicable, have
consented to this Amendment and the Rating Agencies rating securities issued by
each Trust have confirmed that this Amendment to each Pooling Agreement will not
cause such Rating Agency to reduce its current rating assigned to any Class of
rated Certificates;
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:
ARTICLE I
AMENDMENT; DEFINITIONS
SECTION 1.01. Amendment. This Supplemental Servicing Amendment
("Amendment") constitutes an amendment and supplement to each Pooling Agreement.
SECTION 1.02. Definitions. The following terms have the following meanings
when used in this Amendment.
"Advance Conditions" has the meaning set forth in Section 2.02(d) hereof.
"Amendment" means this Supplemental Servicing Amendment, 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.
"Calculated Delinquency Advance" has the meaning set forth in Section
2.02(a) hereof.
"Clearance Account" has the meaning set forth in Section 2.03(a) hereof.
"Clearing Bank" means Chase Manhattan Bank, N.A. or any other Designated
Depository Institution mutually acceptable to the Supplemental Servicer, the
Servicer and the Certificate Insurer for each Trust.
"Compensating Interest" with respect to any Trust Group, has the meaning
set forth in the related Pooling Agreement.
"Daily Collections" has the meaning, with respect to a particular Trust
Group, set forth in the Pooling Agreement relating to such Trust Group.
"Depositor" has the meaning set forth in the introductory paragraph hereof.
"Disbursing Agent" shall mean each of the Servicer and Supplemental
Servicer acting as agents for each Trust.
"Disbursement Notice" has the meaning set forth in Section 2.03(d) herein.
"Funds Available for Servicing Payments" means, with respect to any Trust,
the amounts described in the related Pooling Agreement as the Servicing Fee and
other servicing compensation payable to the Servicer under such Pooling
Agreement, including but not limited to, late payment charges, prepayment
charges, release fees, assumption fees and bad check charges during any
Remittance Period.
"Grain Subservicing Agreement" has the meaning set forth in the second
WHEREAS clause in the Recitals hereof.
"Gross Collections" means, with respect to each Trust Group, all amounts
paid with respect to the Home Equity Loans, including but not limited to, the
total amount of principal, interest, Prepayments, Net Liquidation Proceeds,
Insurance Proceeds, late payment charges, prepayment charges, release fees,
assumption fees and bad check charges, received by the Servicer or by any other
entity on behalf of the Trust, in all circumstances prior to the payment,
netting or deduction of any amount and prior to the deposit of such funds into
the Principal and Interest Account.
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"Home Equity Loans" has the meaning set forth in the first WHEREAS clause
in the Recitals hereof.
"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, such earlier Monthly Remittance Date.
"Mandatory Trust Groups" means the Trusts identified on Schedule A-1 and
the Trust Groups identified on Schedule A-2 as "Mandatory."
"Maximum Aggregate Supplemental Delinquency Advance" means $125,000,000.
"Maximum Available Supplemental Delinquency Advance" means the Maximum
Aggregate Supplemental Delinquency Advance less the amount of any outstanding
unreimbursed Supplemental Delinquency Advances.
"Net Collections" means Gross Collections minus the Funds Available for
Servicing Payments.
"Optional Trust Groups" means the Trust Groups identified on Schedule A-2
as "Optional."
"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 hereof.
"Principal and Interest Account" has the meaning, with respect to a
particular Trust, set forth in the Pooling Agreement relating to such Trust.
"Right" has the meaning set forth in Section 6.04 hereof.
"Servicer" has the meaning set forth in the introductory paragraph hereof.
"Servicer Delinquency Advance" has the meaning set forth in Section 2.02(a)
hereof.
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"Supplemental Delinquency Advance" has the meaning set forth in Section
2.02(a) hereof.
"Supplemental Delinquency Advance Notice" has the meaning set forth in
Section 2.02(b) hereof.
"Supplemental Servicer" has the meaning set forth in the introductory
paragraph hereof.
"Supplemental Servicing Fee" has the meaning set forth in Section 2.04(a)
hereof.
"Supplemental Servicing Fee Shortfall" means any difference between the
amount of the Supplemental Servicing Fee due to the Supplemental Servicer
pursuant to Section 2.04(a) hereof on any particular day and the amount of the
Supplemental Servicing Fee actually paid to the Supplemental Servicer on such
day.
"Trust Groups" means with respect to the Trusts set forth on Schedule A-1,
such Trusts, and with respect to the Trusts set forth on Schedule A-2, the Loan
Groups for each such Trust identified on such Schedule.
"Trustee" has the meaning set forth in the introductory paragraph hereof
"Trusts" has the meaning set forth in the introductory paragraph hereof.
"Turbo Event" has the meaning set forth in Section 4.01(c) hereof.
"Verification Agent" has the meaning set forth in Section 6.01 hereof.
SECTION 1.03. Other Terms. Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the related Pooling
Agreements.
ARTICLE II
THE SERVICER AND THE SUPPLEMENTAL SERVICER
SECTION 2.01. Appointment of the Supplemental Servicer; Direction to
Trustee. Pursuant to the Pooling Agreements, each Trustee, on behalf of each
Trust, hereby appoints the Supplemental Servicer to perform the services set
forth in Section 2.02 hereof, which appointment the Supplemental Servicer hereby
accepts. The Supplemental Servicer agrees to perform the obligations set forth
in Section 2.02 hereof in accordance with the terms set forth herein and in the
Pooling Agreements. The Supplemental Servicer undertakes no obligations of the
Servicer under the Pooling Agreements other than those expressly set forth in
Section 2.02 hereof. Nothing in this Amendment shall relieve the Servicer of its
obligations under the Pooling Agreements or in any way limit such obligations.
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The Depositor hereby directs each Trustee to execute and deliver this
Amendment on behalf of each Trust and to notify each Certificateholder entitled
to notice in accordance with the terms of the related Pooling Agreement.
SECTION 2.02. Obligations of the Supplemental Servicer.
(a) The Supplemental Servicer shall, with respect to each Mandatory Trust
Group, and may, with respect to each Optional Trust Group, advance on each
Monthly Remittance Date, until the Supplemental Servicer's advancing obligation
terminates pursuant to Section 4.01 hereof, to each Trustee on behalf its
respective Trust Groups, a "Supplemental Delinquency Advance" in an amount equal
to the lesser of
(i) the "Calculated Delinquency Advance," which shall be the lesser
of:
(a) the Delinquency Advance due on such Monthly Remittance Date for such
Trust Group less (I) any Compensating Interest with respect to such
Remittance Period not paid by the Servicer with its own funds and (II)
any portion of a Delinquency Advance to the extent payable as a result
of accounting or other errors, or the failure to deposit funds or the
misapplication of funds by the Servicer, and
(b) 5.0% of the unpaid principal balance of the Home Equity Loans of such
Trust Group as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Monthly
Remittance Date occurs less any unreimbursed Supplemental Delinquency
Advances for such Trust Group as of such Monthly Remittance Date; and
(ii) if the aggregate of all Calculated Delinquency Advances exceeds
the Maximum Available Supplemental Delinquency Advance, the amount of the
Calculated Delinquency Advance shall be allocated on a pro rata basis among
the Trusts, based on the ratio of the aggregate Calculated Delinquency
Advances due to all Trusts to the Maximum Available Supplemental
Delinquency Advance, first among the Mandatory Trust Groups and secondly
among the Optional Trust Groups for which the Supplemental Servicer is
making a Supplemental Delinquency Advance.
With respect to any Trust Group, the Supplemental Servicer may agree in its sole
discretion to make a Supplemental Delinquency Advance in an amount greater than
the Calculated Delinquency Advance provided for above. Unless otherwise agreed
by the Supplemental Servicer in its sole discretion, in no event shall the
aggregate of all Supplemental Delinquency Advances exceed the Maximum Available
Supplemental Delinquency Advance. The difference between the Supplemental
Delinquency Advance paid by the Supplemental Servicer on any Monthly Remittance
Date to a particular Trust Group and received by the Trustee and the total
Delinquency Advance due under the Pooling Agreement for such Trust Group on such
Monthly Remittance Date shall be paid by the Servicer as a Delinquency Advance
(a "Servicer Delinquency Advance").
(b) No later than 1:00 p.m. New York time on the Business Day preceding
each Monthly Remittance Date, the Servicer shall deliver to the Supplemental
Servicer, each
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Trustee and the Certificate Insurer for each Trust a notice (the "Supplemental
Delinquency Advance Notice"), in the form of Exhibit I hereto, setting forth,
among other things, the amounts due on such Monthly Remittance Date for the
Delinquency Advance, the Supplemental Delinquency Advance and the Servicer
Delinquency Advance to each Trustee for each Trust Group, and the amounts
thereof from prior Remittance Periods that remain unreimbursed.
(c) As soon as reasonably practicable following receipt of the Supplemental
Delinquency Advance Notice, the Supplemental Servicer shall advise the Servicer
and the Verification Agent of the amount, if any, of the Supplemental Advance it
intends to make in respect of Optional Trust Groups. On each Monthly Remittance
Date, the Supplemental Servicer shall, pursuant to the terms of this Section
2.02, pay in immediately available funds by wire transfer to the Certificate
Account for each Trust the Supplemental Delinquency Advance due in respect of
each Mandatory Trust Group and, if it elects to make such advance, the
Supplemental Delinquency Advance (or portion thereof) due in respect of each
Optional Trust Group.
(d) The obligation of the Supplemental Servicer to make a Supplemental
Delinquency Advance in respect of a Mandatory Trust Group is expressly
conditioned upon (i) issuance of a Supplemental Delinquency Advance Notice
verified by the Verification Agent at least one Business Day prior to the
Monthly Remittance Date with regard to such Trust Group, (ii) no Turbo Event
with respect to any Trust having occurred and continuing unremedied and no facts
or circumstances described in Section 4.01(c) having occurred and continuing
unremedied, without regard to whether the Supplemental Servicer has issued a
notice with respect to such event(s), (iii) this Amendment not having been
terminated; (iv) the Clearing Bank not having failed to act in accordance with a
Disbursement Notice; (v) the Supplemental Servicer determining in its reasonable
good faith judgment that such Supplemental Delinquency Advance will be
recoverable from Net Collections of such Trust Group within three months of the
date made; and (vi) the Servicer having paid in full all amounts due to the
Verification Agent (collectively, the "Advance Conditions"). Notwithstanding any
provision contained herein to the contrary, the Supplemental Servicer shall have
no obligation to make a Supplemental Delinquency Advance to a particular Trust
unless all the Advance Conditions have been satisfied and the making of a
Supplemental Delinquency Advance if any Advance Conditions are not satisfied
shall not constitute a waiver of such right or be construed as a precedent.
SECTION 2.03. Servicer Acts as Agent; Gross Collections; Disbursing Notices.
(a) The Servicer shall, during the term of this Amendment, deposit or cause
to be deposited Gross Collections upon receipt for each Trust without deduction,
off-set or netting into an account entitled "ContiMortgage Payment Clearing A/C
FBO Other Investors/Custodial Acct" maintained at the Clearing Bank for the
benefit of the Trusts (the "Clearance Account"). Notwithstanding anything to the
contrary in any Pooling Agreement, the Servicer shall not receive Servicing
Fees, other servicing compensation, or reimbursement of Servicing Advances or
Servicer Delinquency Advances except in accordance with this Amendment and the
Servicer shall not be entitled to deduct, off-set or net any amounts from Gross
Collections prior to deposit into the Clearance Account.
(b) The parties hereto agree that the Servicer shall be acting in the
capacity as agent of the Trusts when it receives Gross Collections, deposits
Gross Collections into the
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Clearance Account and when it issues Disbursement Notices, and that the Servicer
has no right, title or interest in any Gross Collections unless and until such
amounts are actually paid to the Servicer pursuant to an authorized Disbursement
Notice for its own benefit in accordance with this Amendment.
(c) The Servicer shall not have or obtain any right, title or interest in
any amounts paid from the Gross Collections to the Supplemental Servicer as a
Supplemental Servicing Fee, as reimbursement for Supplemental Delinquency
Advances, or otherwise. The Servicer acknowledges and agrees that any Gross
Collections received and held by it in the Clearance Account or otherwise are
held as agent and in trust for the applicable Trust. Each Trust is the owner of
its Gross Collections until actually paid pursuant to this Amendment and the
Pooling Agreement.
(d) Subject to Section 2.06, on each Business Day in which collected funds
are on deposit in the Clearance Account, the Disbursing Agent, as agent for each
Trustee, shall issue a notice to the Clearing Bank, the other Disbursing Agent
and the Verification Agent (each a "Disbursement Notice"), which in each case
shall contain (subject to appropriate modification) the items of information
shown on Exhibit II hereto, directing such Clearing Bank to (i) transfer the
appropriate amounts of escrow funds, insurance premiums, and suspense items to
their respective accounts, (ii) to pay by wire transfer from the Clearance
Account to the Supplemental Servicer or the Servicer from Funds Available for
Servicing Payments remaining after transfers pursuant to subsection (i) in this
paragraph, as appropriate and pursuant to the priorities established in this
Amendment, all available funds necessary to pay Supplemental Servicing Fees,
Servicing Fees and other servicing compensation, and (iii) to pay by wire
transfer from the Clearance Account to the Supplemental Servicer or the Servicer
from any funds of each Trust Group remaining after transfers pursuant to
subsections (i) and (ii) in this paragraph, as appropriate and pursuant to the
priorities established in this Amendment, all available funds of each Trust
Group necessary to reimburse Supplemental Delinquency Advances and Servicer
Delinquency Advances, provided, that any disputed amounts shall be deposited
into the Principal and Interest Account for the related Trust as provided in
Section 6.01. To the extent any amounts remain in the Clearance Account after
such amounts have been paid, the Disbursing Agent shall issue a Disbursement
Notice directing the Clearing Bank to deposit the Daily Collections into the
Principal and Interest Account for the related Trust.
(e) In all instances in which the Disbursing Agent is required to perform
an action, the Servicer shall be obligated to take such action and the
Supplemental Servicer may, but is not required to perform, such action. Each
person receiving direction or a notice (including, without limitation, a
Disbursement Notice) from the Servicer and Supplemental Servicer, in each case
as Disbursing Agent, pertaining to the payment of Supplemental Servicing Fees or
reimbursement for Supplemental Delinquency Advances shall disregard the
direction or notice from the Servicer and act in accordance with the direction
or notice from the Supplemental Servicer. The Supplemental Servicer as the other
Disbursing Agent, retains the right to issue alternate Disbursement Notices to
the Clearing Bank concerning Supplemental Servicing Fees and reimbursement for
Supplemental Delinquency Advances which shall supercede any inconsistent
direction or notice issued by the Servicer as Disbursing Agent and shall make
all such inconsistent notices or directions null and void. Each Disbursing Agent
agrees that it will only disburse funds on deposit in the Clearance Account in
accordance with
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the terms of the related Pooling Agreements, as amended by this Amendment. If
the Supplemental Servicer is acting as Disbursing Agent, it shall disburse funds
in the Clearance Account only with respect to the Home Equity Loans owned by the
Trusts. At such time as this Amendment has terminated and the Supplemental
Servicer has been paid and reimbursed all amounts owing to it pursuant to this
Amendment, the Supplemental Servicer shall so notify the Clearing Bank, and
shall advise the Clearing Bank that it is no longer authorized to issue
Disbursement Notices pursuant hereto and that any then effective Disbursement
Notices given by it shall thereafter be void.
SECTION 2.04. Supplemental Servicing Fee.
(a) As compensation for rendering the services specified herein, the
Supplemental Servicer shall be entitled to receive, on a daily basis, a
supplemental servicing fee (the "Supplemental Servicing Fee") from each Trust.
The Supplemental Servicing Fee due on any particular day from a particular Trust
shall equal the product of (i) LIBOR plus 250 basis points, (ii) 1/360 and (iii)
the highest amount of such unreimbursed Supplemental Delinquency Advances
associated with such Trust on such day, provided, however, that on any day that
there are accrued and unpaid Supplemental Servicing Fees for a prior Monthly
Remittance Period, the Supplemental Servicing Fee for that day shall not exceed
12.0% per annum.
(b) The Supplemental Servicing Fee shall be paid each Business Day solely
from the Funds Available for Servicing Payments, pursuant to a Disbursement
Notice, prior to any payment to the Servicer (or a successor servicer) with
respect to the Servicing Fee or other servicer compensation. The Servicer (or a
successor servicer) shall not be entitled to receive the Servicing Fee or other
servicing compensation and no Trust shall pay the Servicing Fee or other
servicing compensation to the Servicer (or a successor servicer) if there exists
a Supplemental Servicing Fee Shortfall. The amount of any Supplemental Servicing
Fee paid to the Supplemental Servicer from each Trust shall reduce,
dollar-for-dollar, the amount of the Servicing Fee and other Servicer
compensation that would otherwise have been payable to the Servicer (or a
successor servicer) by such Trust but for the execution of this Amendment.
(c) Upon payment in full of all Supplemental Servicing Fees then due and
owing, all remaining Funds Available for Servicing Payments (if any) shall be
paid to the Servicer (or a successor servicer).
(d) Notwithstanding anything to the contrary in this Amendment, the amount
paid to the Supplemental Servicer as a Supplemental Servicing Fee in a
Remittance Period from a particular Trust may not exceed the total Funds
Available for Servicing Payments deposited to the Clearance Account for such
Trust for such Remittance Period.
SECTION 2.05. Reimbursement for Supplemental Delinquency Advances.
(a) The Supplemental Servicer shall be reimbursed for all Supplemental
Delinquency Advances it makes. For the avoidance of doubt, the reimbursement for
Supplemental Delinquency Advances and Servicer Delinquency Advances made in
respect of a particular Trust Group shall be from the Net Collections of such
Trust Group and not on a loan-by-loan basis and no funds shall be remitted from
the Principal and Interest Account to the
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Trustee for deposit into the Certificate Account to the extent that there are
any Supplemental Delinquency Advances that have not been reimbursed. On each
Business Day during each Remittance Period on which there is an unreimbursed
Supplemental Delinquency Advance, the Disbursing Agent shall, on a Trust
Group-by-Trust Group basis, issue a Disbursement Notice to reimburse the
Supplemental Servicer from Net Collections held in the Clearance Account for all
outstanding Supplemental Delinquency Advances prior to payment of any amount
from Net Collections to the Servicer (or a successor servicer) or to the
Principal and Interest Account.
(b) For the avoidance of doubt, notwithstanding anything contained in the
Pooling Agreements to the contrary, the Servicer (or a successor servicer) is
not entitled to, and may not obtain, reimbursement of Delinquency Advances in
respect of any Trust Group (including, without limitation, from the Clearance
Account or Principal and Interest Account) prior to the Supplemental Servicer
receiving reimbursement of all Supplemental Delinquency Advances outstanding
with respect to such Trust Group.
(c) In the event that the Supplemental Servicer has not been reimbursed in
full for Supplemental Delinquency Advances relating to a particular Trust Group,
but funds relating to such Trust Group have nevertheless been deposited into the
related Principal and Interest Account, then the Supplemental Servicer shall be
reimbursed from such funds on deposit in such Principal and Interest Account
prior to the transfer of such amounts to the Certificate Account. Such
reimbursement from the Principal and Interest Account shall be made by the
applicable Trust on receipt of a notice from the Disbursing Agent.
(d) For the avoidance of doubt, and notwithstanding anything herein or in
the Pooling Agreement to the contrary, the Servicer (or a successor servicer)
shall be entitled to recover Servicer Advances on a loan-by-loan basis from the
Mortgagors to the extent permitted by the Home Equity Loans, or, if not
recovered from the Mortgagor on whose behalf the Servicing Advance was made,
from Liquidation Proceeds realized upon the liquidation of the related Home
Equity Loan prior to the payment of Liquidation Proceeds to any other party to
this Amendment.
SECTION 2.06. Certification of Supplemental Servicer Fee and Supplemental
Delinquency Advance Reimbursement Rights
The right to payment of the Supplemental Servicing Fee and the right to
reimbursement for Supplemental Delinquency Advances shall be evidenced by a
negotiable certificate (a "Supplemental Servicing Certificate") in the form
attached hereto as Exhibit III if the owner of the Supplemental Delinquency
Advances so requests of the Trustee in writing. Each Supplemental Servicing
Certificate shall be executed and authenticated by the manual or facsimile
signature of one of the Trustee's Authorized Officers. Upon proper
authentication by the Trustee, the Supplemental Servicing Certificates shall
bind each Trust and shall evidence each Trust's obligations to pay and reimburse
the Supplemental Servicing Fee and the right to reimbursement for Supplemental
Delinquency Advances in accordance with this Amendment and the related Pooling
Agreement. The holder of any Supplemental Servicing Certificate may transfer,
pledge, encumber, hypothecate or assign all or any part of its rights in the
Supplemental Servicing Certificate. The Trustee shall cause to be kept a
register in which the registration of the Supplemental Servicing Certificates
and any transfer of the Supplemental Servicing
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Certificates shall be recorded if so requested by the transferee or pledgee. If
so directed by the Trustee or the Supplemental Servicer, the Servicer will
include payment instructions for the registered owner of a Supplemental
Servicing Certificate in Disbursement Notices subsequently given. If a
Supplemental Servicing Certificate is destroyed, lost of stolen, upon reasonable
security and indemnity to hold the Trustee and the applicable Trust harmless,
the Trustee shall execute a new Supplemental Servicing Certificate in
replacement for the destroyed, lost or stolen Supplemental Servicing
Certificate. Simultaneously with the payment in full of any Supplemental
Servicing Certificate after the termination of this Amendment, such Certificate
shall be surrendered to the Trustee. The Supplemental Servicer shall pay any
reasonable and customary fees charged by the Trustee in connection with the
issuance of any Supplemental Servicing Certificate or for effecting any transfer
thereof. The Supplemental Servicer hereby agrees to indemnify and hold each
Trust and the Trustee harmless against any loss, liability, claim, damage or
expense incurred in connection with any legal action or proceeding brought by
any third party who has acquired an interest in any Supplemental Servicing
Certificate.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS; CONDITIONS PRECEDENT
SECTION 3.01. Representations, Warranties and Covenants of the Supplemental
Servicer. The Supplemental Servicer hereby represents and warrants to and
covenants with the Trustee as follows:
(a) The Supplemental 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 Amendment; the Supplemental
Servicer has the full corporate power and authority to execute and deliver this
Amendment and to perform in accordance herewith; the execution, delivery and
performance of this Amendment by the Supplemental Servicer and the consummation
of the transactions contemplated hereby have been duly and validly authorized;
this Amendment evidences the valid, binding and enforceable obligation of the
Supplemental Servicer; and all requisite corporate action has been taken by the
Supplemental Servicer to make this Amendment valid and binding upon the
Supplemental Servicer in accordance with its terms;
(b) Neither the execution and delivery of this Amendment, nor the
fulfillment of or compliance with the terms and conditions of this Amendment,
will conflict with or result in a breach of any of the terms, conditions or
provisions of the Supplemental Servicer's charter or by-laws or any material
agreement or instrument to which the Supplemental 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 Supplemental Servicer or its property is
subject;
(c) There is no action, suit, proceeding, or investigation pending or, to
the knowledge of the Supplemental Servicer, threatened against the Supplemental
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 Supplemental Servicer, or in
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any material impairment of the right or ability of the Supplemental Servicer to
carry on its business, or of any action taken or to be taken in connection with
the obligations of the Supplemental Servicer contemplated herein, or which would
materially impair the ability of the Supplemental Servicer to perform under the
terms of this Amendment; 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 Supplemental Servicer of or compliance by the Supplemental
Servicer with this Amendment or the consummation of the transactions
contemplated by this Amendment, or if required, such approval has been obtained
prior to the date hereof.
SECTION 3.02. Representations, Warranties and Covenants of the Servicer.
The Servicer hereby represents and warrants to and covenants with the
Supplemental Servicer 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 Amendment; the Servicer has the full
corporate power and authority to execute and deliver this Amendment and to
perform in accordance herewith; the execution, delivery and performance of this
Amendment by the Servicer and the consummation of the transactions contemplated
hereby have been duly and validly authorized; this Amendment evidences the
valid, binding and enforceable obligation of the Servicer; and all requisite
corporate action has been taken by the Servicer to make this Amendment valid and
binding upon the Servicer in accordance with its terms;
(b) Neither the execution and delivery of this Amendment, nor the
fulfillment of or compliance with the terms and conditions of this Amendment,
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 Amendment; 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 Amendment
or the consummation of the transactions contemplated by this Amendment, or if
required, such approval has been obtained prior to the date hereof.
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(e) The Servicer has no right, title or interest in or to any Gross
Collections (other than as trustee, or as agent for the related Trustee, of
Gross Collections held by it or by the Clearing Bank) unless and until funds
from such Gross Collections are actually paid to it pursuant to the applicable
Pooling Agreement, as modified by this Amendment.
(f) The Servicer shall continue to collect and deposit into the Clearance
Account, in the ordinary course of its business, the Gross Collections in the
same manner that it has been collecting and depositing such receipts and
deposits, except that the Servicer may not net, off-set or deduct from such
collections or deposits.
(g) The Servicer shall cooperate with the Verification Agent and shall
allow the Verification Agent access to the Servicer's books, records, computer
system and employees during ordinary business hours upon reasonable notice and
shall allow the Verification Agent to review all collections with respect to
Home Equity Loans and to make such copies of books, records and documents as the
Verification Agent determines in its sole discretion, in each case, on a daily
basis.
SECTION 3.03. Conditions Precedent. This Amendment shall not become
effective unless the following conditions are met or waived in writing by the
Supplemental Servicer: (i) receipt by the Supplemental Servicer of an
acknowledgement by the Clearing Bank in form and substance satisfactory to the
Supplemental Servicer agreeing to accept Disbursement Notices from the
Supplemental Servicer on a priority basis and limiting the ability to change the
name of the Clearance Account, and (ii) termination of the Grain Subservicing
Agreement and receipt by the Supplemental Servicer of a duly authorized letter
from Continental Grain Company that no amounts are owing to it, and all
obligations due it, under the Grain Subservicing Agreement have been paid and
satisfied.
ARTICLE IV
REMOVAL; RESIGNATION; MERGER; ASSIGNMENT
SECTION 4.01. Term of Amendment; Termination of Supplemental Servicing.
(a) The Supplemental Servicer's obligation to make Supplemental Delinquency
Advances hereunder shall terminate on the date on which this Amendment
terminates, which shall be October 15, 2000 except as this Amendment may be
terminated earlier as set forth in Sections 4.01(b) or 4.01(c) hereof and as
this Amendment may be extended if agreed to in writing by the Depositor, the
Trustee, Servicer and Supplemental Servicer, with 30 days prior written notice
given to the other parties hereto and the related Certificate Insurers.
(b) The Servicer may terminate this Amendment upon 30 days prior written
notice to each of the other parties hereto and the related Certificate Insurers.
Each Certificate Insurer may terminate this Amendment with respect to the Trusts
related to it upon five Business Days prior written notice to each of the
parties hereto. If the Servicer resigns or is terminated pursuant to the terms
of the Pooling Agreements, the Trustee or a successor servicer may terminate
this Amendment upon five Business Days notice to the parties hereto without
payment
12
of any fee (other than reimbursement for unpaid Supplemental Servicing Fees and
unreimbursed Supplemental Delinquency Advances in accordance with the provisions
hereof).
(c) The Supplemental Servicer may terminate this Amendment and its
obligation to make Supplemental Delinquency Advances immediately upon notice to
each of the other parties hereto and the related Certificate Insurers if any of
the following occur and is continuing on the second Business Day after notice of
the occurrence of any of the following (each, a "Turbo Event"):
(i) The Servicer receives payment for the Servicing Fee or other
servicing compensation with respect to a Trust at a time when Supplemental
Servicing Fees with respect to such Trust have not been timely paid in
accordance with Section 2.04;
(ii) The Servicer is reimbursed for a Servicer Delinquency Advance
with respect to a Trust Group at a time when Supplemental Delinquency
Advances with respect to such Trust Group remain unreimbursed;
(iii) The Servicer fails to deposit Gross Collections to the Clearance
Account or fails to deposit the appropriate amounts to any Principal and
Interest Account as it has been doing in the ordinary course of business,
except for nominal amounts as a result of inadvertence, error or oversight,
which, in each case is corrected in a prompt manner;
(iv) The Servicer issues a Disbursement Notice to the Clearing Bank or
otherwise withdraws funds from the Clearance Account or any Principal and
Interest Account except as expressly authorized by the provisions of any
Pooling Agreement, as amended by this Amendment;
(v) The Servicer breaches any provision of this Amendment or any of
the Servicer's representations, warranties or covenants are untrue when
made or became untrue thereafter;
(vi) The Clearing Bank fails to act in accordance with a Disbursement
Notice issued by the Supplemental Servicer or the Clearing Bank informs or
otherwise indicates to the Supplemental Servicer that it will not honor
future Disbursement Notices issued by the Supplemental Servicer; and
(vii) Any party to this Amendment, or its successor in interest,
except the Supplemental Servicer, institutes any action or proceeding
seeking to avoid any portion of this Amendment or render any portion of
this Amendment ineffective.
(d) Notwithstanding any termination of this Amendment, the Supplemental
Servicer's right to payment and reimbursement for unpaid Supplemental Servicing
Fees and unreimbursed Supplemental Delinquency Advances shall survive any such
termination until such amounts have been paid and reimbursed in full. Following
any termination of this Amendment, the Disbursing Agent, on behalf of the
related Trust, and each Trustee, shall continue to issue Disbursement Notices
directing payment to the Supplemental Servicer amounts due to it in respect of
unpaid Supplemental Servicing Fees and unreimbursed Supplemental Delinquency
13
Advances, as calculated in and provided by Article II hereof, until all such
amounts have been paid or reimbursed in full. This Section 4.01(d), Article V,
and Sections 6.05 through 6.15 shall survive any termination of this Amendment.
If the Servicer is not replaced by the Trustee or a successor servicer, Article
II also shall survive any termination of this Amendment until the Supplemental
Servicer has been paid and reimbursed all amounts owing to it pursuant to this
Amendment. Notwithstanding anything to the contrary contained herein, if this
Amendment is terminated and the Servicer is replaced by the Trustee or a
successor servicer, then, until all amounts owing to the Supplemental Servicer
in respect of unpaid Supplemental Servicing Fees and unreimbursed Supplemental
Delinquency Advances have been paid and reimbursed in full, the Trustee or
successor servicer, as appropriate, shall (i) assume the responsibilities of the
Servicer to act as Disbursing Agent, on behalf of the related Trustee pursuant
to this Amendment, including the issuance of Disbursement Notices and
allocations of Gross Collections pursuant to Section 2.03(d), (ii) pay the
Supplemental Servicing Fee pursuant to Section 2.04, (iii) reimburse the
Supplemental Servicer for all unreimbursed Supplemental Delinquency Advances
pursuant to Section 2.05, and (iv) perform the obligations of the Servicer
pursuant to Section 2.06.
SECTION 4.02. Merger or Consolidation of the Supplemental Servicer. The
Supplemental Servicer 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 Supplemental
Servicer shall be a party, or any Person succeeding to the business of the
Supplemental Servicer, shall be the successor of the Supplemental Servicer, 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.
SECTION 4.03. Assignment. The Supplemental Servicer may assign its rights
and obligations hereunder to any Person with the prior written consent of the
Servicer and the Certificate Insurer with respect to the related Trust.
ARTICLE V
LIMITATION ON LIABILITY; INDEMNIFICATION
SECTION 5.01. Limitation on Liability of the Supplemental Servicer;
Indemnification.
(a) The Supplemental Servicer and any director, officer, employee or agent
of the Supplemental Servicer 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. None of the Supplemental Servicer, nor any of
its directors, officers, employees or agents shall have any liability to the
Trustee, the Trust or the Certificateholders for any action taken or for
refraining from the taking of any action by it relating to this Amendment or for
errors in judgment; provided, however, that this provision shall not protect the
Supplemental Servicer or any such person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of the duties of the
14
Supplemental Servicer or by reason of reckless disregard of the obligations and
duties of the Supplemental Servicer hereunder. The Supplemental Servicer shall
not have any liability for any consequential, incidental, special, exemplary,
punitive, or any similar, damages and each party hereto irrevocably and
unconditionally waives any right it may have to claim or recover any such
damages.
(b) The Servicer hereby indemnifies and holds the Supplemental Servicer and
any director, officer, employee or agent of the Supplemental Servicer harmless
against any loss, liability, claim, damage or expense incurred in connection
with any legal action or proceeding relating to this Amendment or the
Supplemental Servicer's action, or failure to take action, under this Amendment,
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. To the extent that the Supplemental Servicer incurs any loss,
liability or expense arising out of or in connection with this Amendment, the
Supplemental Servicer shall be reimbursed and held harmless by each Trust Estate
to the same extent that the Servicer would be reimbursed or held harmless from
the Trust Estate pursuant to Section 8.05 of the Pooling Agreements; provided,
however, that in the event the Servicer seeks reimbursement or to be held
harmless pursuant to Section 8.05 of the Pooling Agreements for itself from the
Trust Estate, the Supplemental Servicer shall be reimbursed and held harmless
prior to any payment being made to the Servicer with respect to its request to
be reimbursed or held harmless.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Verification Agent. The Supplemental Servicer shall appoint a
nationally-recognized firm of independent accountants reasonably acceptable to
the Certificate Insurers, the Trustee and the Servicer to serve as the
verification agent (the "Verification Agent"). The Supplemental Servicer hereby
appoints KPMG LLP as the initial Verification Agent. The Servicer shall deliver
the proposed Supplemental Delinquency Advance Notice to the Verification Agent
at least one Business Day prior to the issuance of a Supplemental Delinquency
Advance Notice, which notice the Verification Agent shall review and verify that
the calculations of the amounts set forth therein are correct. In the event the
Verification Agent disagrees with any amounts set for in the Supplemental
Delinquency Advance Notice, it shall immediately notify the Supplemental
Servicer and the Servicer of its findings. Any disagreement must be resolved by
the Verification Agent and the Servicer by 11:00 am New York time on the day on
which such Supplemental Delinquency Advance Notice is due. In the event any such
disagreement cannot be resolved by such time on such date, the findings of the
Verification Agent shall be final and binding, and the Servicer shall submit, as
final, such amended Supplemental Delinquency Advance Notice as the Supplemental
Advance Notice. The findings of the Verification Agent in any Supplemental
Delinquency Advance Notice shall be conclusive and shall be binding on all
parties, absent manifest error. To the extent requested by the Supplemental
Servicer, the Verification Agent shall also review Disbursement Notices given by
the Servicer. In the event the Verification Agent disagrees with any amounts set
forth in any Disbursement Notice(s), it shall immediately notify the
Supplemental Servicer and the Servicer of its findings. All amounts subject to
disagreement shall be deposited into the Principal and
15
Interest Account for the related Trust (and the Servicer acknowledges and agrees
that the Supplemental Servicer may issue a Disbursement Notice to the Clearing
Bank so instructing the Clearing Bank) and shall not be disbursed from such
Principal and Interest Account until the earlier of resolution or the next
Monthly Remittance Date. In the event any such disagreement cannot otherwise be
resolved prior to the next Monthly Remittance Date, the findings of the
Verification Agent shall be final and binding. The fees and expenses of the
Verification Agent will be paid by the Servicer (with such fees to be paid on an
estimated basis, monthly in advance, and such expenses to be paid as incurred)
except that, at the direction of the Supplemental Servicer, any fees or expenses
of the Verification Agent remaining unpaid more than ten Business Days after
submission shall be paid from Funds Available for Servicing Payments after
payment of the Supplemental Servicing Fee pursuant to Section 2.04(b) hereof,
which payment shall reduce the Servicing Fee and other servicing compensation on
a dollar-for-dollar basis. The failure to pay the fees and expenses of the
Verification Agent promptly by the Servicer shall give rise to a breach of the
Advance Conditions.
SECTION 6.02. Inconsistencies with Pooling Agreements; Amendment to
Supplemental Servicing Amendment and the Pooling Agreements.
(a) The Servicer shall not amend any Pooling Agreement in any way that
would affect the rights or obligations of the Supplemental Servicer hereunder
without the prior written consent of the Supplemental Servicer.
(b) Notwithstanding any provision in a Pooling Agreement requiring
ContiMortgage to pay the expenses of the Trust from its own funds, the Servicer
shall not be responsible for and shall not pay from its own funds the
Supplemental Servicing Fee or the reimbursement of Supplemental Advances or any
other fee or expense described in this Amendment (other than any indemnification
of the Supplemental Servicer as provided in the first sentence of Section
5.01(b) and the fee of the Verification Agent as provided in Section 6.01) as
expenses of the Trust.
SECTION 6.03. Servicer Primarily Liable. Notwithstanding anything to the
contrary contained in this Amendment, the Servicer shall continue to be
responsible for making each Delinquency Advance pursuant to Section 8.09(a) of
each Pooling Agreement in the event the Supplemental Servicer fails to make any
required Supplemental Advance on the date required hereunder.
SECTION 6.04. 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 Amendment 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.
16
SECTION 6.05. Controlling Law; Jurisdiction.
(a) This Amendment 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 applicable to
agreements entered into and to be performed within 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 Amendment 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. SECTION 6.06. 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 Amendment, any
other transaction document or any instrument or document delivered hereunder or
thereunder.
SECTION 6.07. Notices. All demands, notices, and communications hereunder
shall be effective when personally delivered, when sent by facsimile with
confirmation of receipt by the recipient's facsimile machine or the Business Day
after delivery to a nationally recognized overnight delivery service when the
delivery fee is prepaid and delivery by the next Business Day morning is
specified, to the following addresses or facsimile number, or to such other
address or facsimile number as is later specified by notice:
(i) If to Servicer:
17
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 Supplemental Servicer:
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to
General Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000
(iii) If to the Trustee:
Manufacturers and Traders Trust Company
Xxx X&X Xxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Corporate Trust Administration
(iv) If to the Depositor:
ContiSecurities Asset Funding Corp.
0000 Xxxx Xxxxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
18
(v) If to MBIA Insurance Corporation
MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Insured Portfolio Management - SF
(ContiMortgage
Home Equity Loan Pass-Through
Certificates, Series 1994-3,
1994-4, 1994-5, 1996-2, 1996-3, 1996-4, 1997-4,
1997-5,1998-1, 1998-2, 1998-3 and 1999-2)
Telephone: (000) 000-0000
Fax: (000) 000-0000
(vi) If to Ambac Assurance Corporation:
Ambac Assurance Corporation
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
(vii) If to Financial Guaranty Insurance Company:
Financial Guaranty Insurance Company
000 Xxxxxxxx
Xxx Xxxx, XX 1006
Attention: General Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000
SECTION 6.08. Binding Nature of Amendment. This Amendment 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 Amendment to be binding only upon the Servicer or
Supplemental Servicer.
SECTION 6.09. Provisions Separable. The provisions of this Amendment 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.
SECTION 6.10. Counterparts. For the purpose of facilitating the execution
of this Amendment and or other purposes, this Amendment 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.
SECTION 6.11. Entire Agreement; Amendment of this Amendment. This Amendment
contains the entire understanding between the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous agreements
and
19
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 Amendment may not be modified or amended other than by an
agreement in writing.
SECTION 6.12. Paragraph Headings. The paragraph headings in this Amendment
are for convenience only; they form no part of this
Amendment and shall not affect its interpretation.
SECTION 6.13. Advice from Counsel. The parties understand that this
Amendment 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 Amendment
and that it is satisfied with its legal counsel and the advice received from it.
SECTION 6.14. Judicial Interpretation. Should any provision of this
Amendment 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 Amendment.
SECTION 6.15. Third Party Rights. The Trustee, Supplemental Servicer and
the Servicer agree that the Certificate Insurer for each Trust shall be deemed a
third party beneficiary of this Amendment as if it were a party hereto.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
20
IN WITNESS WHEREOF, the parties have caused this Amendment 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/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
GREENWICH CAPITAL
FINANCIAL PRODUCTS, INC.,
as Supplemental Servicer
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
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 Supplemental Servicing Amendment]
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 this Amendment to
each Pooling Agreement:
MBIA INSURANCE CORPORATION,
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
FINANCIAL GUARANTY INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
AMBAC ASSURANCE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: First Vice President
[Signature Page to Supplemental Servicing Amendment--con't]
SCHEDULE A-1
List of Pooling Agreements with Reimbursements Trust-by-Trust
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
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
1997-4 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
A-1
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
1998-4 Pooling and Servicing Agreement, dated as of December 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
1999-1 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
1999-2 Pooling and Servicing Agreement, dated as of March 1, 1999, 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
1999-3 Pooling and Servicing Agreement, dated as of June 1, 1998, among
ContiSecurities Asset Funding Corp., as Depositor, Norwest Bank
Minnesota, National Association, as Master Servicer,
ContiMortgage Corporation, as Servicer and as Seller, ContiWest
Corporation, as Seller and Manufacturers and Traders Trust
Company, as Trustee
A-2
SCHEDULE A-2
List of Pooling Agreements with Reimbursements Loan Group-by-Loan Group
SERIES POOLING AGREEMENT LOAN GROUP MANDATORY/
------ ----------------- ----------- OPTIONAL
DESIGNATION
-----------
1995-2 Pooling and Servicing Agreement, dated as of May 1, 1995, among Fixed Rate Group Mandatory*
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage Adjustable Rate Group Optional
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 Fixed Rate Group Mandatory*
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage Adjustable Rate Group Optional
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 Group I Mandatory*
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage Group II Optional
Corporation, as Servicer and as Seller and Manufacturers and Traders Group III Optional
Trust Company, as Trustee
1996-1 Pooling and Servicing Agreement, dated as of November 1, 1995, among Fixed Rate Group Mandatory*
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage Adjustable Rate Group Optional
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 Fixed Rate Group Mandatory
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage Adjustable Rate Group Optional
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 Fixed Rate Group Mandatory
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage Adjustable Rate Group Optional
Corporation, as Servicer and as Seller and
A-1
Manufacturers and Traders Trust Company, as Trustee
SERIES POOLING AGREEMENT TRUST GROUP MANDATORY/
------ ----------------- ----------- OPTIONAL
DESIGNATION
-----------
1996-4 Pooling and Servicing Agreement, dated as of December 1, 1996, among Fixed Rate Group Mandatory
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage Adjustable Rate Group Optional
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 Group I Mandatory
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage Group II Optional
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 Group I Mandatory
ContiSecurities Asset Funding Corp., as Depositor, ContiMortgage Group II Optional
Corporation, as Servicer and as Seller, ContiWest Corporation, as
Seller and Manufacturers and Traders Trust Company, as Trustee
* These Loan Groups will be treated as Optional with respect to the Monthly
Remittance Date occuring in November, 1999.
A-2
EXHIBIT I
Form of Supplemental Delinquency Advance Notice
-------, -----
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx or General Counsel
Re: Supplemental Servicing Amendment, dated as of
November 9, 1999;
Notice of Supplemental Delinquency Advance
Pursuant to Section 2.02(b) of the Supplemental Servicing Amendment, dated as of
November 9, 1999 (the "Supplemental Servicing Amendment"), among ContiMortgage
Corporation (the "Servicer"), ContiWest Corporation, as Seller, ContiSecurities
Asset Funding Corp., as Depositor, Greenwich Capital Financial Products, Inc.
(the "Supplemental Servicer") and Manufacturers and Traders Trust Company (the
"Trustee"), the undersigned hereby notifies you that a Supplemental Delinquency
Advance in the amount of $_________ is due on the Monthly Remittance Date
occurring on ________, ___. The computation of the amount of the Supplemental
Delinquency Advance is set forth below.
The undersigned also hereby certifies that to the best of its knowledge, each of
the Advance Conditions contained in Section 2.02(d) have been met.
AMOUNT ON
REMITTANCE DEPOSIT IN UNREIMBURSED UNREIMBURSED
AMOUNT AND RELATED AMOUNT OF AMOUNT OF AMOUNT OF AMOUNT OF UNPAID
PRINCIPAL PRINCIPAL AND AMOUNT OF SUPPLEMENTAL SUPPLEMENTAL SERVICER SERVICER AMOUNT OF
NAME OF TRUST REMITTANCE INTEREST DELINQUENCY DELINQUENCY DELINQUENCY DELINQUENCY DELINQUENCY SUPPLEMENTARY
GROUP AMOUNT ACCOUNT ADVANCE ADVANCE ADVANCES ADVANCE ADVANCES SERVICING FEE
------------- --------------- ------------- ------------- -------------- ---------------- ------------- -------------- -------------
------------- --------------- ------------- ------------- -------------- ---------------- ------------- -------------- -------------
Totals
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Please remit the amount of the Supplemental Delinquency Advance directly to
Manufacturers and Traders Trust Company (the "Trustee") at the account listed
below on the Monthly Remittance Date.
To:
Account No:
Reference:
Very truly yours,
CONTIMORTGAGE
CORPORATION, as
Servicer
By:________________________________
Name:
Title:
Verified by:
KPMG LLC
----------------------------
By:
Title:
cc: Manufacturers and Traders Trust Company
Xxx X&X Xxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Corporate Trust Administration
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