SERVICING AGREEMENT
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This Amended Servicing Agreement (the "Agreement") is made as of the 29th
day of August, 2002 by and between the Provident Bank, a banking corporation
organized and existing under the laws of the State of Ohio, whose address is Xxx
Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 (the "Servicer"), and Geneva Mortgage
Corp., a NJ corporation whose address is 000 X. Xxxxxx Xxx., Xxxxxxxxx Xxxxxx,
XX (the "Holder").
WITNESSETH
WHEREAS, Servicer and Holder have entered into an Amended And Restated
Warehouse Loan And Security Agreement dated _______________________________ (the
"Warehouse Agreement"), whereby Servicer funds loans originated by Holder and
secured by mortgages, deeds of trust, trust deeds, security deeds, deeds to
secure debt and like security instruments on existing single family (1-4 units)
residential properties; and
WHEREAS, Holder engaged Servicer as an independent contractor to perform
for a temporary period such servicing functions as are described in a Servicing
Agreement executed on Augsut 29, 2002; and
WHEREAS, Holder and Servicer desire to amend the Servicing Agreement.
NOW, THEREFORE, in consideration of the promises, terms, conditions and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
DEFINITIONS
The following terms shall have the following meanings:
Agreement: This Amended Servicing Agreement.
Cash Collateral Account: The deposit account established and maintained
pursuant to Paragraph 5 (d) of the Warehouse Agreement and Paragraph 7 of this
Agreement.
Condemnation Proceeds: All awards of settlement in respect to a Mortgaged
Property by exercise of the power of eminent domain or condemnation.
Credit Files: All records and documents related to a Mortgage Loan,
including, without limitation, promissory notes, mortgages, deeds of trust or
other documents evidencing a security interest, assignments, underwriting
documents, disclosures required by applicable laws, title insurance commitments
and policies and any other documentation reasonably required by Servicer to set
up and service the accounts.
Escrow Account: The separate account or accounts maintained pursuant to
Section 9.
Escrow Payments: With respect to any Mortgage Loan, the
amounts..constituting ground rents, mortgage insurance premiums, hazard
insurance premiums, taxes, assessments, condominium fees, and any other payments
required to be escrowed by the Mortgagor with the Mortgagee pursuant to the
Mortgage or other loan documents.
FHA: The Federal Housing Administration, an agency within the United States
Department of Housing and Urban Development, or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
FNMA: The Federal National Mortgage Association or any successor thereto.
Funding Date: The date on which an advance is made by Servicer to Holder
pursuant to the Warehouse Agreement.
Holder:__________________________________________________ or its successors
and assigns. (Name of Warehouse Borrower)
HUD: The Department of Housing and Urban Development.
Investor: The purchaser of any Mortgage Loan from ________________________.
(Name of Warehouse Borrower)
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related mortgaged property
including FHA insurance proceeds and/or VA guaranty proceeds.
Liquidation Proceeds: Cash received in connection with the liquidation of a
defaulted Mortgage Loan, whether through the sale or assignment of such Mortgage
Loan, trustee's sale, foreclosure sale or otherwise.
Monthly Payment: The scheduled monthly payment of principal and interest on
a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a lien in fee simple in real property securing the
Mortgage Note.
Mortgage Interest Rate: The annual rate of interest borne on a Mortgage
Loan.
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Mortgage Loan: An individual Mortgage Loan which is subject to this
Agreement and which includes, without limitation, the Mortgage Note, Mortgage,
the Credit File and all rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgage Property: The real property securing repayment of any Mortgage
Note.
Mortgagee: Geneva Mortgage Corp. its successors and assigns.
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(Name of Warehouse Borrower)
Mortgagor: The obligor on a Mortgage Note.
Private Mortgage Insurance: A policy of mortgage guaranty insurance issued
by a qualified insurer with respect to certain Mortgage Loans.
Servicer: The Provident Bank and its successors and assigns.
Warehouse Agreement: The Amended and Restated Warehouse Loan and Security
Agreement between Provident Bank and Geneva Mortgage Corp. dated August 29,
2002. ----------------------
(Name of Warehouse Borrower)
Transfer Date: The Transfer Date with respect to any Mortgage Loan shall be
the date upon which the Servicer is entitled to receive the transfer of
servicing responsibilities pursuant to the Agreement.
VA: The Veterans Administration, an agency of the United States of America,
or any successor thereto.
1. Relationship of Parties. Holder and Servicer specifically agree that in
the servicing of any loan hereunder, Servicer shall have the status of and act
as an independent contractor. Nothing herein shall be construed to create a
partnership or joint venture between Holder and Servicer. The representations
and warranties of Servicer contained in this Agreement shall in no event be
construed as a warranty or guaranty by Servicer as to future payments by any
Mortgagor. Further, Servicer shall not be responsible for any representations
and warranties which are directly related to the origination process or between
Holder and any Investor relating to the origination or servicing of any Mortgage
Loan.
2. Types of Loans. All loans submitted to Servicer for servicing hereunder
shall be fixed or adjustable rate loans secured generally by first and second
liens on existing single family (1-4 units) residential properties.
Notwithstanding the foregoing, Servicer reserves the right to require Holder to
submit for servicing other types of loans (such as multi-family loans) that
Servicer in its sole discretion deems necessary. The documentation for each loan
submitted hereunder shall provide for payments of principal, interest and
deposits, if any, to be paid once monthly. Servicer retains the right to reject
for servicing any loans with other payment frequencies.
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3. Compensation. As compensation for rendering the services set forth
herein, Servicer shall be entitled to:
(i) A set-up fee of fifty ($50.00) dollars per Mortgage Loan payable
upon the sale of the Mortgage Loan to an Investor.
Notwithstanding anything contained in this Agreement or the
Warehouse Agreement to the contrary, Holder and Servicer
expressly agree that the amount of any compensation owing to
Servicer may be withdrawn from the Cash Collateral Account
established by and pursuant to the Warehouse Agreement.
(ii) Beginning on the Funding Date, Service shall be entitled to a
monthly servicing fee with respect to any Mortgage Loan serviced
hereunder. The monthly servicing fee shall be an amount equal to
one twelfth (1/12) of the servicing fee rate. The servicing fee
rate for each Mortgage Loan shall be 0.50% per annum (50 basis
points) of the then outstanding principal balance of the Mortgage
Loan. If the Mortgage Loan is purchased by an Investor and the
Warehouse advance is fully repaid within 30 days from the Funding
Date, no fee shall be due; however, Servicer shall be entitled to
keep any fed from a monthly payment made within 30 days of the
Funding Date. Notwithstanding anything herein to the contrary, a
servicing fee shall be deemed fully earned on the 30th day after
the Funding Date and each successive 30th day thereafter until
the Warehouse advance is fully repaid; however, collection of
said servicing fees may, at the sole discretion of Servicer, be
deferred until the Mortgage Loan is sold to an investor
(iii)Servicing-related fees charged to Mortgagors, including, but not
limited to, release and satisfaction fees, pay-off statement
fees, tax service fees, NSF fees, deferral charges, late charges,
subordination fees, modification fees, fees for providing copies
of documents from a Credit File to any Mortgagor and other
miscellaneous servicing fees that Servicer may lawfully charge a
Mortgagor whose loan is being serviced
(iv) Investment earnings on the Escrow Account (if allowed by
applicable law).
4. Holder Responsibilities. Holder shall be responsible for:
(i) Providing Servicer with complete Credi Files for each loan
submitted hereunder to enable Servicer to place and service the
loan(s) on its system. All such documentation must be received no
later than seventy-two hours (72) after the close of any purchase
money transaction, and no later than seventy-two hours (72) after
the end of the applicable rescission period for any refinance
transaction (the Transfer Date).
(ii) Advising Servicer upon delivery of eac loan submitted for
servicing as to whether the loan is in a warehouse (unsold)
status. If a loan which has been
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delivered to Servicer in a warehouse (unsold) status is
subsequently sold, Holder will immediately notify Servicer of the
sale by written confirmation and will deliver a copy of the
Investor's purchase advice or funding detail report, and Holder
shall pay all outstanding interest and fees owed to Servicer
pursuant to the Warehouse Agreement and this Agreement prior to
any transfer of servicing. Holder shall also provide Servicer
with all necessary information regarding the Investor that will
enable Servicer to clear the account from its system and transfer
the account to the Investor in a timely manner. In the event the
Investor charges a penalty for late reporting, remittances, etc.,
which were caused by Holder's delay in notifying Servicer of the
Investor's purchase of the loan, Holder agrees to pay such
penalty.
(iii)Providing Servicer with Escrow Payment collected at closing,
insurance and tax information and any other documentation
required by Servicer in the performance of its servicing function
pursuant to this agreement.
(iv) Providing Servicer with physical evidence that a hazard insurance
policy and, if applicable, a Private Mortgage Insurance (PMI)
policy (not limited to HUD's Mortgage Insurance Coverage) is in
force for each loan delivered to Servicer for servicing and
allowing Servicer sufficient time to receive evidence in-house
that all notification(s) have been forwarded to Servicer.
Further, Holder agrees to indemnify and hold Servicer harmless
from any loss, damage, claim or expense caused by insufficient
evidence of hazard insurance, or, if applicable, by a lapse in
Private Mortgage Insurance coverage or flood insurance coverage
prior to delivery of servicing to Servicer.
(v) Assuring that improvements on property securing each Mortgage are
insured by hazard insurance in an amount at least equal to the
unpaid principal balance of the loan or the full insurable value
of the improvements, whichever is less, of a type at least as
protective as fire and extended coverage, and containing a
"standard" or "union" mortgage clause (without contribution) in
the form customarily used in the area in which the property is
located. In all events, the provisions of the Credit File shall
prevail. The mortgagee clause will be reflected as running to the
benefit of Lender/Servicer, its successors and assigns. During
the course of servicing, the mortgagee clause in the hazard
insurance will read as follows:
The Provident Bank
Its Successors and/or Assigns
000 Xxxx Xxxxxx, Mail Stop 172D
Xxxxxxxxxx, XX 00000
(vi) Providing Servicer with all legal records, including court
orders, consent decrees, judgments, verdicts, agreed orders,
consents, and other agreements or records that govern the
servicing of the loans. Holder agrees to indemnify and hold
Servicer harmless from any loss caused by Holder's failure to
provide the
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information required under this subparagraph or from the
provision by Holder of incomplete, obsolete or inaccurate
information required under this subparagraph.
(vii)Providing Servicer with such limited powers of attorney and
other documents necessary to enable the Servicer to perform its
servicing and administrative obligations under this agreement.
5. Servicer Responsibilities. The Servicer, as an independent contractor,
shall service and administer the Mortgage Loan from and after the related
Transfer Date and shall have full power and authority, acting alone to do any
and all things in connection with such servicing and administration which the
Servicer may deem necessary or desirable, consistent with the terms of this
Agreement and with accepted mortgage servicing practices, including taking all
actions that a mortgagee is permitted or required to take by the FHA or VA, with
respect to FHA loans and VA loans, as the case may be. The Servicer shall not
waive, modify or vary any term of any mortgage loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to a Mortgagor unless Servicer has obtained the prior consent of the
Holder. The Servicer is hereby authorized and empowered to execute and deliver
on behalf of itself and the Holder all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments with respect to the Mortgage Loans and with respect to the Mortgaged
Properties.
(i) The Servicer shall, in accordance with the Real Estate Settlement
and Procedures Act (RESPA) or other applicable laws, provide
notice to the Mortgagors of each mortgage of the change of
servicing to the Servicer. No loans shall be service released to
any Investor until all fees, charges and interest owed to
Servicer have been paid in full and the RESPA notification period
has lapsed.
(ii) In servicing and administering any FHA loans or VA loans, the
Servicer shall comply strictly with the National Housing Act and
the FHA regulations; the Serviceman's Readjustment Act, and the
VA regulations and administrative guidelines issued thereunder or
pursuant thereto.
(iii)In servicing and administering the Mortgage Loans, the Servicer
shall employ procedures, including collection procedures, and
exercise the same degree of care that it customarily employs and
exercises in servicing and administering mortgage loans for its
own account, giving due consideration to accepted servicing
practices where such practices do not conflict with the
requirements of this Agreement.
(iv) On or before the 5th business day of each month, the Servicer
shall report information pertaining to the Mortgage Loans and
Escrow Accounts as may reasonably be requested by Holder and
consistent with standard servicing practices. In addition,
Servicer shall provide information necessary for Holder
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to complete any report required by any Private Mortgage Insurance
(PMI) carrier, HUD, VA, FHLMC, FNMA, if applicable.
(v) Notwithstanding any other provision of this Agreement, Servicer
shall not be obligated to advance any funds to Holder or on
Holder's behalf with respect to any Mortgage Loan subject to this
Agreement. However, in the event it is necessary to advance funds
for delinquent taxes, insurance, not limited to Private Mortgage
Insurance or Mortgage Impairment Coverage, advances will be taken
from the funds collected within the Deposit Account to cover
funds advanced.
(vi) If the Mortgage Loan becomes delinquen while under this
agreement, the Servicer shall consult with the Holder to acquire
further direction. It is expressly understood that the Servicer
will not proceed with further actions, i.e., legal action, until
written permission is given from the Holder advising the Servicer
of the next step that should be taken.
6. Collection of Mortgage Loan Payments. Continuously from the related
Transfer Date until the date each Mortgage Loan ceases to be subject to this
Servicing Agreement, the Servicer shall proceed diligently to collect all
payments due under each of the Mortgage Loans when the same shall become due and
payable and shall take special care in ascertaining and estimating escrow
payments (if applicable), and all other charges that will become due and payable
with respect to the Mortgage Loans and each related Mortgage Property. In the
event that a Mortgage Loan is sold to an Investor net of one or more Monthly
Payments (net-funded), Servicer shall continue its effort to collect said
Monthly Payments after the date the Mortgage Loan is service-released to the
Investor (or successor servicer), for an additional period of 60 days. Servicer
shall be entitled to receive the servicing compensation provided by this
Agreement for this additional 60 day servicing period irrespective of whether
such Monthly Payments are collected by Servicer, and the duties and obligations
imposed upon Servicer under this agreement shall terminate at the end of such 60
day period.
7. Deposits to the Cash Collateral Account. The Servicer shall deposit all
funds collected and received pursuant to any Mortgage Loan into the Cash
Collateral Account established and maintained pursuant to the Warehouse
Agreement. The Servicer, in accordance with the terms of this Agreement and the
Warehouse Agreement, may draw on the funds deposited into the Cash Collateral
Account.
The Servicer shall deposit into the Cash Collateral Account on a daily
basis and retain therein the following collections received by the Servicer
after the related Transfer Date:
(i) All payments on account of principal o the Mortgage Loans,
including all principal prepayments;
(ii) All payments on account of interest on the Mortgage Loans:
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(iii)All REO disposition proceeds in connection with payment on
account of principal and interest;
(iv) All condemnation proceeds which are applied as a principal
prepayment;
(v) Any amount required to be deposited into the Cash Collateral
Account.
8. Permitted Withdrawals From the Cash Collateral Account. The Servicer
shall, from time to time, withdraw funds from the Cash Collateral Account for
the following purposes:
(i) To make payments to the Holder in the amounts and in the manner
provided for by this Agreement:
(ii) To reimburse itself for servicing compensation provided for in
this Agreement:
(iii) To clear and terminate the Cash Collateral Account.
(iv) To cure any default by Holder with the terms of this Agreement or
the Warehouse Agreement.
(v) To reimburse Servicer for any advances for any mortgage loan made
pursuant to the Warehouse Agreement.
9. Establishment of and Deposits to Escrow Account. When specifically
requested by Holder, Servicer shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan constituting Escrow Payments separate and
apart from any of its own funds and general assets, and shall establish and
maintain one or more Escrow Accounts, in the form of demand accounts. The Escrow
Accounts shall be established at The Provident Bank, Cincinnati, Ohio. The
Servicer, in accordance with the terms of this Agreement, may draw on funds
deposited into the Escrow Account. The Servicer shall deposit into the Escrow
Account or Accounts on a daily basis, and retain therein the following:
(i) All Escrow Payments collected on account of the Mortgage Loans,
for the purpose of affecting timely payment of any such items as
required under the terms of this Agreement;
(ii) All amounts representing Insurance Proceeds or Condemnation
Proceeds which are to he applied to the restoration or repair of
any Mortgage Property;
(iii)All Liquidation Proceeds in connection with Escrow Payments and
property liquidation expenses; and
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(iv) Any amounts required to be deposited b the Servicer in connection
with the deductible clause and blanket hazard insurance policy.
The Servicer shall make withdrawals from the Escrow Account, only to
affect such payments as are required under this Agreement. To the extent
required by law, the Servicer shall pay interest on escrow funds to the
Mortgagor.
10. Permitted Withdrawals From Escrow Account. The Servicer may make
withdrawals from the Escrow Account or Accounts only:
(i) To affect timely payments of taxes, assessments, mortgage
insurance premiums, water rates, condominium charges, fire and
hazard insurance premiums, or other items constituting Escrow
Payments for the related Mortgage;
(ii) To refund to any Mortgagor any funds found to be in excess of the
amounts required under the terms of the related Mortgage Loan or
applicable federal or state law or judicial or administrative
ruling; and
(iii)To clear and terminate the Escrow Account upon the termination
of this Agreement.
11. Notification of Interest Rate Adjustments. With respect to each
adjustable rate Mortgage Loan, the Servicer shall adjust the Mortgage Interest
Rate on the related interest rate adjustment date and shall adjust the Monthly
Payment on the related mortgage payment adjustment date, if applicable, in
compliance with the requirements of applicable law and the related Mortgage and
Mortgage Note. The Servicer shall execute and deliver any and all necessary
notices required under applicable law and the terms of the related Mortgage Note
and Mortgage regarding the Mortgage interest Rate and monthly payment
adjustments. The Servicer shall promptly, upon written request therefor, deliver
to the owner such notifications and any additional applicable data regarding
such adjustments and the methods used to calculate and implement such
adjustments. Upon discovery by the Servicer or the receipt of notice from the
Holder that the Servicer has failed to adjust the Mortgage Interest Rate or
Monthly Payment in accordance with the terms of the related Mortgage Note, the
Servicer shall deposit in the Deposit Account from its own funds the amount of
any interest loss caused the Holder thereby as such interest loss occurs.
12. Completion and Recordation of Assignment of Mortgage and FHA and VA
Change Notices. To the extent permitted by applicable law, each assignment of
mortgage is subject to recordation in all appropriate public offices for real
property records in all of the counties or other comparable jurisdictions in
which any or all of the Mortgage Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
affected at the Holder's expense. At the Holder's direction, the Servicer shall
cause the endorsement of the Mortgage Note, the assignment of mortgage, the
assignment of security agreement, and other necessary and applicable records to
be completed.
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13. Remittances to Holder. With respect to each Mortgage Loan serviced
pursuant to this Agreement, the Servicer shall, after deduction for the
servicing fees provided by this agreement, deposit the remainder of each Monthly
Payment received from the Mortgagor into the applicable Deposit Account. All
Monthly Payments deposited into the Deposit. Account shall be applied to reduce
the outstanding balance owing to Servicer from Holder relating to the applicable
Mortgage Loan funded by Servicer pursuant to the terms of the Warehouse
Agreement. Any excess funds remaining after payment of the servicing fees
provided by this agreement and application to the outstanding balance owed to
Servicer by Holder, shall be held in the Deposit Account until the Mortgage Loan
is transferred to an Investor, at which time such excess funds shall be remitted
to Holder. In no event shall any funds held in any Mortgagor's Escrow Account be
applied to reduce any indebtedness of holder to Servicer.
14. Advances by Servicer. The Servicer shall not be obligated to make any
advances as to any Mortgage Loan serviced pursuant to this Agreement; provided,
however, Servicer shall be obligated to reimburse Holder from its own funds as a
result of any failure by Servicer to adjust a Mortgage Interest Rate or Monthly
Payment in accordance with the terms of the related Mortgage Note as provided
for by this Agreement.
15. Representations and Warranties of the Holder. The Holder, as a
condition to the consummation of the transactions contemplated hereby, makes the
following representations and warranties to the Servicer as of each Transfer
Date:
(i) Due Organization and Authority. The Holder is a corporation duly
organized, validly existing and in good standing under the laws
of the state of its incorporation, and has all licenses necessary
to carry on its business as now being conducted; the Holder has
the full corporate power and authority to execute and deliver
this Agreement, and to perform in accordance herewith. The
execution, delivery and performance of this Agreement, including
all instruments of transfer to be delivered pursuant to this
Agreement by the owner, and the consummation of the transactions
contemplated hereby, have been duly and validly authorized; this
Agreement evidences the valid binding and enforceable obligation
of the owner, and all requisite corporate action has been taken
by the Holder to make this Agreement valid and binding upon the
Servicer in accordance with these terms.
(ii) Sole Owner. Holder is the sole and lawful owner and holder of the
Mortgage Loans and has full legal right, power and authority to
enter into this Agreement and to perform each and all of Holder's
obligations under this Agreement.
(iii) Compliance with Applicable Law. Holder has complied with:
(a) All applicable laws, rules and regulations of the US
Government and each applicable state and local government;
(b) If applicable, rules, regulations, handbooks and guides of
FHLMC, FNMA, other applicable investors, and each applicable
private mortgage insurer
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relating to such mortgage loans, including, but not limited to,
the origination of such mortgage loans, and
(c) All provisions of each loan and the loan documents.
(iv) No Conflicts. Neither the execution an delivery of this Agreement
nor the conveyance of the responsibilities to the Servicer or the
transactions contemplated hereby, will conflict with or result in
a breach of any of the terms, conditions or provisions of the
owner's charter or bylaws, or any legal restriction or any
agreement or instrument to which the owner is now a party, or by
which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the
violation of any law, rule, regulation, order, judgment or decree
to which the Holder or its property is subject, or impair the
value of this contract consummated hereby.
(v) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Holder which,
either in any one instance or in the aggregate, may result in any
material adverse change in the business, operations, financial
condition, properties, or assets of the owner, or in any material
impairment of the right or ability of the owner to carry on its
business substantially as now conducted, or in any material
liability on the part of the owner, or which would draw into
question the validity of this Agreement, or of any action taken
or to be taken in connection with the obligations of the owner
contemplated herein, or which would be likely to impair
materially the ability of the owner to perform pursuant to the
terms of this Agreement.
(vi) No Untrue Information. Neither this agreement nor any statement,
report or other document furnished or to be furnished pursuant to
this Agreement or in connection with the transactions
contemplated herein, contains any untrue statement of fact or
omits any fact necessary to make the statements contained therein
not misleading.
16. Indemnification by Holder. The Holder shall indemnify the Servicer and
hold it harmless against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and other
costs and expenses resulting from any claim, demand, defense or assertion based
on or grounded upon, or resulting from, a breach of the Holder representations
and warranties contained in this Agreement. Any cause of action against the
Holder relating to or arising out of the breach of any representation and
warranty made in this Agreement, shall accrue upon (i) discovery of such breach
by the Servicer or notice thereof by the Servicer to the Holder; (ii) failure by
the Holder to cure such breach; and (iii) demand upon the Holder by the Servicer
for compliance with the terms of this Agreement.
17. Representations, Warranties and Agreements of the Servicer. The
Servicer, as a condition to the consummation of the transactions contemplated by
this Agreement, hereby makes the following representations and warranties to the
Holder as of each Transfer Date:
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(i) Due Organization and Authority. The Servicer is an Ohio
corporation organized and validly existing under the laws of the
State of Ohio and has all licenses necessary to carry on its
business as now being conducted, and is licensed, qualified and
in good standing in each state where a Mortgaged Property is
located, if the laws of such state require licensing or
qualification in order to conduct business of the type conducted
by the Servicer, and in any event, the Servicer is in compliance
with the laws of any such state to the extent necessary to insure
the enforceability of the terms of this Agreement; the Servicer
has the full corporate power and authority to execute and deliver
this Agreement and to perform in accordance herewith; the
execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this
Agreement) by the Servicer in the consummation of the
transactions contemplated hereby, have been duly and validly
authorized; this Agreement evidences the valid binding and
enforceable obligation of the Servicer and all requisite
corporate action has been taken by the Servicer to make this
Agreement valid and binding upon the Servicer in accordance with
its terms.
(ii) Ability to Perform. The Servicer does not believe, nor does it
have any reason or cause to believe, that it cannot perform each
and every coven'ant and undertaking contained in this Agreement.
(iii)Ability to Service. The Servicer is an FHA approved mortgagee, a
VA approved lender, and an approved seller/servicer of
conventional residential mortgage loans for FNMA or FHLMC, with
the facilities, procedures and experienced personnel necessary
for the sound servicing of mortgage loans of the same type as the
Mortgage Loans. The Servicer is in good standing to service
mortgage loans for the FHA and the VA, and either FNMA or FHLMC,
and no event has occurred, including, but not limited to, a
change in insurance coverage, which would make the Servicer
unable to comply with FHA and VA, and either FNMA or FHLMC
eligibility requirements or which would require notification to
any of the FHA, VA, FNMA or FHLMC.
(iv) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Servicer which,
either in any one instance or in the aggregate, may result in any
material adverse change in the business operations, financial
condition, property or assets of the Servicer, or in any material
impairment of the ability of the Servicer to carry on its
business substantially as now conducted or in any material
liability on the part of the Servicer, or which would draw into
question the validity of this Agreement, or of any action taken
or to he taken in connection with the obligations of the Servicer
contemplated herein, or which would be likely to impair
materially the ability of the Servicer to perform under the terms
of this Agreement.
(v) No Untrue Information. Neither this Agreement nor any statement,
report or other document furnished or to be furnished pursuant to
this Agreement or in
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connection with the transactions contemplated hereby contains any
untrue statements of fact or omits to state a fact necessary to
make the statements contained therein not misleading.
(vi) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition of the servicing responsibilities by
the Servicer, or the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of
this Agreement, will conflict with or result in a breach of any
of the terms, conditions or provisions of the Servicer's charter
or bylaws or any legal restriction or any agreement or instrument
to which the Servicer is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of
the foregoing, or result in th violation of any law, rule,
regulation, order, judgment or decree to which the Servicer or
its property is subject, or impair the ability of the Servicer to
service the mortgage loans, or impair the value of the mortgage
loans.
18. Indemnification of Holder by Servicer. The Servicer shall indemnify the
Holder and hold it harmless against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, breach of the Servicer
representations and warranties contained in this Agreement. Any cause of action
against the Servicer relating to or arising out of the breach of any
representation and warranty made in this Agreement by Servicer shall accrue upon
(i) discovery of such breach by the Holder or notice thereof by the Holder to
the Servicer, (ii) failure by the Servicer to cure such breach, and (iii) demand
upon the Servicer by the Holder for compliance with this Agreement.
19. Termination. With respect to any Mortgage Loan accepted by Servicer as
of the Transfer Date, termination shall occur when Holder has conveyed its
interest in the Mortgage Loan to an Investor, and Servicer has received all
advances, fees and accrued interest pursuant to the Warehouse Agreement between
Holder and Servicer, or when the Warehouse Agreement is terminated according to
the terms thereof. If a Mortgage Loan is purchased by an Investor net of one or
more Monthly Payments (net- funded), termination with respect to such Mortgage
Loan shall occur as provided in Section 6 above.
20. Severability. If any part, provision, representation or warranty of
this Agreement is deemed prohibited or is held to be void or unenforceable, such
provision, representation or warranty shall be ineffective to the extent that
such prohibition or unenforceability without invalidating the remaining
provisions hereof.
21. Place of Delivery and Governing Law. This Agreement shall be deemed in
effect when fully executed, and a signed counterpart thereof is received by
Servicer in the State of Ohio, and shall be deemed to have been made in the
State of Ohio. This Agreement shall be construed in accordance with the laws of
the State of Ohio and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with the laws of the State of Ohio.
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22. Binding Agreement. This servicing agreement shall be binding upon and
inure to the benefit of the parties hereto, their successors and assigns. This
servicing agreement may not be assigned by either party without the prior
written consent of the non-assigning party.
23. Notices. All notices or communications required of this Agreement shall
be deemed to be property served when personally delivered, or when placed in the
US mail, first class, postage prepaid, addressed as set forth here and below.
24. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts. Each counterpart shall be deemed to be an original, and
all such counterparts shall constitute one and the same instrument.
25. Waivers. No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
IN WITNESS WHEREOF, the Servicer and Holder have caused their names to be
signed and delivered by their duly authorized officers as of the date first
above written.
PROVIDENT BANK
BY: /s/ Xxxxxx X. Xxxxx
---------------------------------------
NAME: Xxxxxx X. Xxxxx
--------------------------------------
TITLE: V.P.
------------------------------------
GENEVA MORTGAGE CORP.
BY: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
NAME: Xxxxx X. Xxxxxxx
-------------------------------------
TITLE: President
-------------------------------------
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