Des Moines FEDERAL HOME LOAN BANK OF MORTGAGE PARTNERSHIP FINANCE PROGRAM CONSENT TO SUBCONTRACTING AGREEMENT (MPF Xtra PFI Owns MSRs Affiliate or Third Party as Subservicer) THIS CONSENT TO SUBCONTRACTING AGREEMENT (the Contract or Consent ) is dated as of, 20, among (the Subservicer ), a corporation organized and existing under the laws of the state of, the Participating Financial Institution (the PFI ), the FEDERAL HOME LOAN BANK OF Des Moines (the MPF Bank ), a corporation organized and existing under the laws of the United States, and the FEDERAL HOME LOAN BANK OF CHICAGO (the MPF Provider ), a corporation organized and existing under the laws of the United States. 1. GENERAL INFORMATION 1.1. Purpose of Contract. The purpose of this Contract is: a) to implement that certain Federal Home Loan Bank of Des Moines MORTGAGE PARTNERSHIP FINANCE Program Participating Financial Institution Agreement (the Agreement ) dated as of, 20, between the PFI and the MPF Bank, as amended by an MPF Xtra Addendum to PFI Agreement among the PFI, the MPF Bank and MPF Provider (collectively, the Agreement ), by the MPF Provider consenting, pursuant to Section IX of the Agreement, to the PFI s subcontracting with the Subservicer to subservice the mortgages (the MPF Xtra Mortgages or Mortgages )) to be sold to the MPF Provider by the PFI pursuant to the Agreement; b) to obtain the Subservicer s acknowledgment of the terms and conditions of the Agreement as binding on it as a subcontractor of the PFI in the servicing of the MPF Xtra Mortgages under the Agreement, including without limitation, the obligation to service the MPF Xtra Mortgages in accordance with the terms of the Guides as supplemented by the MPF Xtra Manual (the rights and obligations with respect to such servicing are collectively called the Subject Servicing ); and c) to obtain the PFI s acknowledgment that it remains liable for the servicing of the MPF Xtra Mortgages serviced by the Subservicer, including without limitation, the obligation to service the MPF Xtra Mortgages in accordance with the terms of the Agreement and Guides as supplemented by the MPF Xtra Manual. 1.2. Consideration. In consideration of the purpose of this Contract and of all the provisions and mutual promises contained in it, the Subservicer, the PFI, the MPF Bank and the MPF Provider agree to all that this Contract contains. 1.3. Certain Definitions. Any capitalized terms that are used in this Contract (whether used in the singular or the plural), if not otherwise defined in this Contract, shall have the meaning set forth in the Agreement. 2. CONSENT AND ACKNOWLEDGEMENT 2.1. Consent by the MPF Provider. The MPF Provider hereby consents to the PFI s appointment of the Subservicer as a party authorized under Section IX of the Agreement to service the MPF Xtra Mortgages under the Agreement as a subcontractor of the PFI. This consent is granted solely at the discretion of the MPF Provider and may be terminated at any time by the MPF Provider immediately upon notice to the Subservicer. Notice is deemed effective when faxed to the attention of the Subservicer s contact person at the facsimile number listed upon Exhibit A to this Contract. The MPF Provider shall also give concurrent notice to the PFI and MPF Bank of the termination of this Consent. 2.2. Servicing in Accordance with the Agreement. The Subservicer agrees to service the MPF Xtra Mortgages in compliance with the terms and conditions of the Agreement and the Guides as supplemented by the Page 1 of 6
MPF Xtra Manual. The Subservicer acknowledges that all records pertaining to the MPF Xtra Mortgages belong to Fannie Mae. 2.3. No Fees Payable to Subservicer by the MPF Provider. The Subservicer agrees neither the MPF Provider nor Fannie Mae shall have any liability or obligation to compensate the Subservicer for any services it provides with respect to the MPF Xtra Mortgages as a subcontractor of the PFI. It is understood that the compensation or fees, if any, payable by the PFI to the Subservicer as its subcontractor shall be pursuant to a separate agreement between the PFI and the Subservicer (the Subcontract ). The Subservicer further acknowledges that by consenting to the Subcontract, neither the MPF Provider nor Fannie Mae becomes a party to, nor assumes any liability for, any such compensation or fee agreement between the Subservicer and the PFI, including any compensation that may be payable to the Subservicer if the MPF Provider s consent to the Subcontract is terminated without cause. 2.4. Access to Subservicer s Records. The Subservicer agrees to permit the MPF Provider's and Fannie Mae s employees, designated representatives and regulators to examine or audit books, records and information pertaining to the MPF Xtra Mortgages in the same manner as permitted by the PFI under the Agreement, including on-site visits. The Subservicer agrees to cooperate and provide assistance regarding requests made pursuant to this provision. 3. ACKNOWLEDGMENT OF PFI 3.1. PFI's Appointment of Subservicer as Subcontractor. The PFI agrees that its appointment of the Subservicer as its subcontractor to provide the servicing required by it under the Agreement with respect to the MPF Xtra Mortgages shall not relieve the PFI of its responsibilities to service the MPF Xtra Mortgages in accordance with the requirements of the Agreement and Guides as supplemented by the MPF Xtra Manual. 3.2. The MPF Bank s Right of Set-off Not Affected. The PFI agrees that nothing in this Contract shall limit or impair the MPF Bank s right to set-off against any of the PFI s funds held by or at the MPF Bank and that the PFI shall not raise as a defense in any action taken by the MPF Bank to enforce the Agreement that servicing of the MPF Xtra Mortgages has been performed by the Subservicer. 3.3. PFI s Warranties Not Affected. None of the PFI s general or specific warranties shall be deemed to be waived, limited or impaired by reason of the MPF Provider s consent to the Subservicer being appointed the PFI s subcontractor with respect to the MPF Xtra Mortgages. 4. MISCELLANEOUS PROVISIONS 4.1. Agreement Not Amended or Affected; Subservicer Not Party to the Agreement. Nothing in this Contract shall be deemed to give the Subservicer any rights with respect to the Agreement, and in particular, the Subservicer shall not be deemed a third party beneficiary of the Agreement. None of the MPF Bank, the MPF Provider or Fannie Mae shall have any liability to the Subservicer arising from the Agreement or from the termination or cancellation of the Agreement whether terminated for cause or without cause. 4.2. Termination of PFI s Servicing Rights. The Parties agree that, in the event the PFI s and/or the Subservicer s rights with respect to the Subject Servicing are terminated by the MPF Provider, all rights and interests of the PFI and the Subservicer with respect to the Subject Servicing shall fully vest under the Agreement in the MPF Provider, subject to the rights of the Investor. The Parties further agree that upon the Subservicer s receipt of written notice from the MPF Provider of the termination of the PFI s and/or Subservicer s rights with respect to the Subject Servicing ( Bank Notice ), any rights, remedies and actions permitted to be taken by the PFI or Subservicer with respect to the Mortgages and the servicing under the Agreement, including without limitation, the termination provisions set forth therein, may be taken by the MPF Provider or by the Investor, which may exercise any rights, remedies or actions available to the PFI under the Subcontract in its own name. In the event the Subservicer terminates the Subcontract, the Subservicer shall provide written notice to the MPF Provider of such termination within three (3) Business Days of delivery of its termination notice to the PFI. Page 2 of 6
Upon receipt of a Bank Notice or should the Subservicer or the PFI terminate the Subcontract, the Subservicer agrees to continue to service the Mortgages for the MPF Provider and the Investor pursuant to the Subcontract and this Contract until the earlier of the following events: a) the MPF Provider approves the PFI to assume the Servicing Rights of the Mortgages in accordance with the Agreement and the Guides; b) the Subservicer transfers the servicing to a successor servicer in accordance with the MPF Provider s requirements and subject to the MPF Provider s approval; or c) subject to the provisions of the Agreement, the Investor terminates the servicing of the Mortgages. Upon the MPF Provider s request, the Subservicer and the PFI shall provide a copy of the Subcontract, all exhibits, schedules and amendments then existing and effective to the MPF Provider. Any Bank Notice or other notice and communications under this Contract shall be in writing and shall be delivered in person or sent by certified United States mail, postage prepaid, return receipt requested or sent by facsimile transmission or sent through a nationally recognized overnight delivery service, addressed at the applicable party's address. Any such notice shall be deemed delivered upon the earlier of actual receipt and, in the case of notice by United States mail, three Business Days after deposit with the United States post office, and in the case of notice by overnight delivery service, the Business Day immediately following the date so deposited with the overnight delivery service. For purposes of this Section 4.2, the addresses, facsimile numbers and electronic transmission information for the Parties are as set forth in Exhibit A attached hereto. Any change must be given in writing in accordance with the provisions of this Section 4.2, but shall be effective only upon actual receipt by the Party(ies) so notified. The Subservicer shall cooperate fully with the MPF Provider and the PFI shall assist the Subservicer in the transfer of the servicing as necessary. Further, if the Subservicer is an approved servicer for the Investor pursuant to a direct servicing contract between the Subservicer and the Investor ( Direct Investor Contract ), then after termination, the Subservicer may apply to the Investor to permit the servicing to be transferred from the Agreement to the Direct Investor Contract. 4.3. Amendment. All amendments to this Contract shall be in writing duly executed and delivered by the Subservicer, the PFI, the MPF Bank and the MPF Provider. 4.4. Consent to Control Subcontract. Without making the MPF Provider a party to the Subcontract, the Subservicer and PFI agree that to the extent that there is any inconsistency between the terms and conditions of the Subcontract and those contained in this Contract, the terms and conditions of this Contract shall control. 4.5. Governing Law. The parties acknowledge that the MORTGAGE PARTNERSHIP FINANCE Program is or will be offered to participating financial institutions in numerous states, that the MPF Provider will be providing services to the MPF Bank, the PFI and all participating financial institutions wherever located, and that this Contract will be performed in part in the State of Illinois because of the services to be provided by the MPF Provider to, or on behalf of, the MPF Bank. THEREFORE THE PARTIES AGREE THAT THIS CONTRACT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE STATUTORY AND COMMON LAW OF THE UNITED STATES OF AMERICA. TO THE EXTENT FEDERAL LAW INCORPORATES OR DEFERS TO STATE LAW, THE RELEVANT STATE LAW SHALL BE THE LAW OF THE STATE OF ILLINOIS (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES) APPLICABLE TO AGREEMENTS TO BE PERFORMED IN THE STATE OF ILLINOIS. 4.6. Successors and Assigns. This Contract will inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns; provided, however, that the foregoing provision shall not be deemed to permit the assignment by the Subservicer or the PFI of any of its respective rights or obligations hereunder without the prior written consent of the MPF Provider. Page 3 of 6
5. SIGNATURES By executing this Contract, the Subservicer, the PFI, the MPF Bank and the MPF Provider agree to all of this Contract's terms and provisions. Each of the Parties have executed and delivered this Contract as of the date first written above. This Contract takes effect on the date this Contract has been executed and delivered by all of the Parties. THE SUBSERVICER: a THE PFI: a THE MPF BANK: FEDERAL HOME LOAN BANK OF Des Moines Page 4 of 6
Acknowledged by the Federal Home Loan Bank of Chicago, as MPF PROVIDER, without waiver or any of its rights under any other agreement with the Bank or any other party to this Consent: FEDERAL HOME LOAN BANK OF CHICAGO as MPF PROVIDER: Page 5 of 6
EXHIBIT A Notice Information of the Parties (pursuant to Sections 2.1 and 4.2): Subservicer: PFI: The MPF Bank: The MPF Provider: Page 6 of 6