EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of November, 2001, by and between XXXXXX BROTHERS BANK, FSB
(the "Bank"), a federal savings bank and XXXXX FARGO HOME MORTGAGE, INC., a
California corporation (formerly known as Norwest Mortgage, Inc. and referred to
herein as the "Servicer"), recites and provides as follows:
RECITALS
WHEREAS, the Bank has conveyed certain Mortgage Loans identified on
Schedule I hereto (the "Serviced Mortgage Loans") to Structured Asset Securities
Corporation, a Delaware special purpose corporation ("SASCO"), which in turn has
conveyed the Serviced Mortgage Loans to JPMorgan Chase Bank (the "Trustee"),
pursuant to a trust agreement, dated as of November 1, 2001 (the "Trust
Agreement"), among the Trustee, Aurora Loan Services Inc., as master servicer
("Aurora," and, together with any successor Master Servicer appointed pursuant
to the provisions of the Trust Agreement, the "Master Servicer") and SASCO.
WHEREAS, the Serviced Mortgage Loan are currently being serviced by the
Servicer pursuant to the following four agreements (each of which is annexed
hereto as Exhibit B): (i) the Seller's Warranties and Servicing Agreement
between the Bank and the Servicer, dated as of March 1, 2001 (for Five-Year
Fixed/One-Year Adjustable Rate Mortgage Loans (WFHM 2001-W02)), (ii) the
Seller's Warranties and Servicing Agreement between the Bank and the Servicer,
dated as of July 1, 2001 (for Seven-Year Fixed/One-Year Adjustable Rate Mortgage
Loans (WFHM 2001-W20)), (iii) the Seller's Warranties and Servicing Agreement
between the Bank and the Servicer, dated as of September 1, 2001 (for Seven-Year
Fixed/One-Year Adjustable Rate Mortgage Loans (WFHM 2001-W34)) and (iv) the
Seller's Warranties and Servicing Agreement between the Bank and the Servicer,
dated as of November 1, 2001 (for Seven-Year Fixed/One-Year Adjustable Rate
Mortgage Loans (WFHM 2001-W42)) (each, an "SWSA" and collectively, the "SWSA" ).
WHEREAS, the Bank desires that the Servicer continue to service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
rights of the Bank and the Master Servicer to terminate the rights and
obligations of the Servicer hereunder as set forth herein and to the other
conditions set forth herein.
WHEREAS, the Bank and the Servicer agree that the provisions of the
SWSA shall apply to the Serviced Mortgage Loans, but only to the extent provided
herein and that this Agreement shall govern the Serviced Mortgage Loans for so
long as such Serviced Mortgage Loans remain subject to the provisions of the
Trust Agreement.
WHEREAS, the Master Servicer and any successor master servicer shall be
obligated, among other things, to supervise the servicing of the Serviced
Mortgage Loans on behalf of the Trustee, and shall have the right, under certain
circumstances, to terminate the rights and obligations of the Servicer under
this Agreement.
WHEREAS, the Bank and the Servicer intend that each of the Master
Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Bank and the Servicer hereby
agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this
Agreement, including Exhibit A hereto and any provisions of the SWSA
incorporated by reference herein (regardless if such terms are defined in the
SWSA), shall have the meanings ascribed to such terms in the Trust Agreement.
2. Custodianship. The parties hereto acknowledge that U.S. Bank Trust,
National Association will act as custodian of the Servicing Files for the
Trustee pursuant to a Custodial Agreement, dated November 1, 2001, between U.S.
Bank Trust, National Association and the Trustee.
3. Servicing. The Servicer agrees, with respect to the Serviced
Mortgage Loans, to perform and observe the duties, responsibilities and
obligations that are to be performed and observed under the provisions of the
SWSA, except as otherwise provided herein and on Exhibit A hereto, and that the
provisions of the SWSA, as so modified, are and shall be a part of this
Agreement to the same extent as if set forth herein in full.
4. Trust Cut-off Date. The parties hereto acknowledge that by operation
of Section 4.05 and Section 5.01 of the SWSA, the remittance on December 18,
2001 to the Trust Fund is to include principal due after November 1, 2001 (the
"Trust Cut-off Date") plus interest, at the Mortgage Loan Remittance Rate
collected during the related Due Period exclusive of any portion thereof
allocable to a period prior to the Trust Cut-off Date, with the adjustments
specified in clauses (b), (c), (d) and (e) of Section 5.01 of the SWSA.
5. Master Servicing; Termination of Servicer. The Servicer, including
any successor servicer hereunder, shall be subject to the supervision of the
Master Servicer, which Master Servicer shall be obligated to ensure that the
Servicer services the Serviced Mortgage Loans in accordance with the provisions
of this Agreement. The Master Servicer, acting on behalf of the Trustee and the
SASCO 2001-18A Trust Fund (the "Trust Fund") created pursuant to the Trust
Agreement, shall have the same rights as the Bank under the SWSA to enforce the
obligations of the Servicer under the SWSA and the term "Purchaser" as used in
the SWSA in connection with any rights of the Purchaser shall refer to the Trust
Fund or, as the content requires, the Master Servicer acting in its capacity as
agent for the Trust Fund, except as otherwise specified in Exhibit A hereto. The
Master Servicer shall be entitled to terminate the rights and obligations of the
Servicer under this Agreement upon the failure of the Servicer to perform any of
its obligations under this Agreement, which failure results in an Event of
Default as provided in Article X of the SWSA. Notwithstanding anything herein to
the contrary, in no event shall the Master Servicer assume any of obligations of
the Bank under the SWSA and in connection with the performance of the Master
Servicer's duties hereunder the parties and other signatories hereto agree that
the Master Servicer shall be entitled to all of the rights, protections and
limitations of liability afforded to the Master Servicer under the Trust
Agreement.
6. No Representations. Neither the Servicer nor the Master Servicer
shall be obligated or required to make any representations and warranties
regarding the characteristics of the Serviced Mortgage Loans (other than those
representations and warranties made by the Servicer in Section 3.02 of the SWSA
hereby restated as of the date of the SWSA) in connection with the transactions
contemplated by the Trust Agreement and issuance of the Certificates issued
pursuant thereto.
2
7. Notices. All notices and communications between or among the parties
hereto (including any third party beneficiary thereof) or required to be
provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
All notices required to be delivered to the Master Servicer under this
Agreement shall be delivered to the Master Servicer at the following address:
Aurora Loan Services, Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: E. Xxxx Xxxxxxxxxx, Master Servicing,
SASCO 2001-18A
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled to the following wire account:
JPMorgan Chase Bank
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc.,
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services, Inc.
For further credit to: SASCO 2001-18A
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Services Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to the Bank hereunder shall be
delivered to the Bank, at the following address:
3
Xxxxxx Brothers Bank, FSB
c/o Ernst & Young
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage Backed Finance Department
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All notices required to be delivered to the Servicer hereunder shall be
delivered to its office at the address for notices as set forth in the SWSA.
8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING NEW YORK OR
OTHER CHOICE OF LAW RULES TO THE CONTRARY.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
4
Executed as of the day and year first above written.
XXXXXX BROTHERS BANK, FSB,
as Owner
By:
-----------------------------------
Name:
Title:
XXXXX FARGO HOME MORTGAGE, INC.,
as Servicer
By:
-----------------------------------
Name:
Title:
Acknowledged:
AURORA LOAN SERVICES, INC.
as Master Servicer
By:
------------------------------
Name:
Title
JPMORGAN CHASE BANK,
as Trustee
By:
------------------------------
Name:
Title
5
EXHIBIT A
Modifications to the SWSA
1. Unless otherwise specified herein, any provisions of the SWSA,
including definitions, relating to (i) representations and warranties
relating to the Mortgage Loans and not relating to the servicing of the
Mortgage Loans, (ii) Mortgage Loan repurchase obligations, (iii) Whole
Loan and Pass-Through Transfers and Reconstitution, and (iv)
Assignments of Mortgage, shall be disregarded for purposes relating to
this Agreement. The exhibits to the SWSA and all references to such
exhibits shall also be disregarded.
2. A new definition of "Prepayment Interest Shortfall Amount" is added to
Article I immediately following the definition of "PMI Policy" to read
as follows:
Prepayment Interest Shortfall Amount: With respect to any
Mortgage Loan that was subject to a Principal Prepayment in
full or in part during any Due Period, which Principal
Prepayment was applied to such Mortgage Loan prior to such
Mortgage Loan's Due Date in such Due Period, the amount of
interest (net of the related Servicing Fee for Principal
Prepayments in full only) that would have accrued on the
amount of such Principal Prepayment during the period
commencing on the date as of which such Principal Prepayment
was applied to such Mortgage Loan and ending on the day
immediately preceding such Due Date, inclusive.
3. A new definition of "Realized Loss" is added to Article I immediately
following the definition of "Rating Agencies" to read as follows:
Realized Loss: With respect to each Liquidated Mortgage Loan
(as defined in the Trust Agreement), an amount equal to (i)
the unpaid principal balance of such Mortgage Loan as of the
date of liquidation, minus (ii) Liquidation Proceeds received,
to the extent allocable to principal, net of amounts that are
reimbursable therefrom to the Master Servicer or the Servicer
with respect to such Mortgage Loan (other than Monthly
Advances of principal) including expenses of liquidation.
4. The parties acknowledge that the fourth paragraph of Section 2.02 shall
be inapplicable to this Agreement.
5. The parties acknowledge that Section 2.03 (Custodial Agreement;
Delivery of Documents) shall be superceded by the provisions of the
Custodial Agreement.
6. Section 3.01(c) (No Conflicts) is hereby amended by deleting the words
"the acquisition of the Mortgage Loans by the Company, the sale of the
Mortgage Loans to the Purchaser".
7. Section 3.01(f) (Ability to Perform) is hereby amended by deleting the
second and third sentences thereof.
8. Section 3.01(h) (No Consent Required) is hereby amended by deleting the
words "or the sale of the Mortgage Loans".
9. Section 3.01 (i) (Selection Process), Section 3.01(k) (Sale Treatment),
Section 3.01(m) (No Brokers' Fees) and Section 3.01(n) (Fair
Consideration) shall be inapplicable to this Agreement.
A-1
10. A new paragraph is hereby added at the end of Section 3.01 (Company
Representations and Warranties) to read as follows:
It is understood and agreed that the representations
and warranties set forth in Section 3.01 (a) through (h), (j)
and (l) shall survive the engagement of the Servicer to
perform the servicing responsibilities hereunder and the
delivery of the Servicing Files to the Servicer and shall
inure to the benefit of the Trustee, the Trust Fund and the
Master Servicer. Upon discovery by either the Servicer, the
Master Servicer or the Trustee of a breach of any of the
foregoing representations and warranties which materially and
adversely affects the ability of the Servicer to perform its
duties and obligations under this Agreement or otherwise
materially and adversely affects the value of the Mortgage
Loans, the Mortgaged Property or the priority of the security
interest on such Mortgaged Property or the interest of the
Trustee or the Trust Fund, the party discovering such breach
shall give prompt written notice to the other.
Within 60 days of the earlier of either discovery by
or notice to the Servicer of any breach of a representation or
warranty set forth in Section 3.01 which materially and
adversely affects the ability of the Servicer to perform its
duties and obligations under this Agreement or otherwise
materially and adversely affects the value of the Loans, the
Mortgaged Property or the priority of the security interest on
such Mortgaged Property, the Servicer shall use its best
efforts promptly to cure such breach in all material respects
and, if such breach cannot be cured, the Servicer shall, at
the Trustee's option, assign the Servicer's rights and
obligations under this Agreement (or respecting the affected
Loans) to a successor Servicer selected by the Trustee with
the prior consent and approval of the Master Servicer. Such
assignment shall be made in accordance with Section 12.01.
In addition, the Servicer shall indemnify (from its
own funds) the Trustee, the Trust Fund and Master Servicer and
hold each of them harmless against any costs resulting from
any claim, demand, defense or assertion based on or grounded
upon, or resulting from, a breach of the Servicer's
representations and warranties contained in this Agreement. It
is understood and agreed that the remedies set forth in this
Section 3.01 constitute the sole remedies of the Master
Servicer, the Trust Fund and the Trustee respecting a breach
of the foregoing representations and warranties.
Any cause of action against the Servicer relating to
or arising out of the breach of any representations and
warranties made in Section 3.01 shall accrue upon (i)
discovery of such breach by the Servicer or notice thereof by
the Trustee or Master Servicer to the Servicer, (ii) failure
by the Servicer to cure such breach within the applicable cure
period, and (iii) demand upon the Servicer by the Trustee or
the Master Servicer for compliance with this Agreement.
A-2
11. Section 4.01 (Company to Act as Servicer) is hereby amended as follows:
(i) by deleting the first, second and third sentences of
the second paragraph of such section and replacing it with the
following:
Consistent with the terms of this Agreement, the
Company may waive, modify or vary any term of any Mortgage
Loan or consent to the postponement of any such term or in any
manner grant indulgence to any Mortgagor if in the Company's
reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially
adverse to the Purchaser, provided, however, that unless the
Mortgagor is in default with respect to the Mortgage Loan or
such default is, in the judgement of the Company, imminent,
the Company shall not permit any modification with respect to
any Mortgage Loan that would change the Mortgage Interest
Rate, forgive the payment of principal or interest, reduce or
increase the outstanding principal balance (except for actual
payments of principal) or change the final maturity date on
such Mortgage Loan.
(ii) by adding the following to the end of the second
paragraph of such section:
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Company
shall forward to the Master Servicer copies of any documents
evidencing such assumption, modification, consolidation or
extension. Notwithstanding anything to the contrary contained
in this Agreement, the Company shall not make or permit any
modification, waiver or amendment of any term of any Mortgage
Loan that would cause any REMIC created under the Trust
Agreement to fail to qualify as a REMIC or result in the
imposition of any tax under Section 860F(a) or Section 860G(d)
of the Code.
12. Section 4.04 (Establishment of and Deposits to Custodial Account) is
hereby amended as follows:
(a) the words "in trust for the Purchaser and/or
subsequent purchasers of Mortgage Loans, and various
Mortgagors-P&I" in the fourth and fifth lines of the
first sentence of the first paragraph shall be
replaced by the following: "in trust for SASCO
2001-18A Trust Fund and various Mortgagors".
(b) by amending clause (viii) to read as follows:
(viii) the amount of any Prepayment Interest
Shortfall Amount paid out of the Servicer's
own funds without any right to reimbursement
therefor;
13. Section 4.05 (Permitted Withdrawals From Custodial Account) is hereby
amended by replacing the last five lines of clause (ii) with the
following:
the Trust Fund; provided however, that in the event
that the Servicer determines in good faith that any
unreimbursed Monthly Advances will not be recoverable from
amounts representing late recoveries of payments of principal
or interest respecting the particular Mortgage Loan as to
which such Monthly Advance was made or from Liquidation
Proceeds or Insurance Proceeds with respect to such Mortgage
Loan, the Servicer may reimburse itself for such amounts from
the Custodial Account, it being understood, in the case of any
such reimbursement, that the Servicer's right thereto shall be
prior to the rights of the Trust Fund;
14. Section 4.06 (Establishment of and Deposits to Escrow Account) shall be
amended by deleting the words "Purchaser and/or subsequent purchasers
of Residential Mortgage Loans, and various Mortgagors-T&I" in the
fourth and fifth lines of the first sentence of the first paragraph,
and replacing it with the following:
"in trust for SASCO 2001-18A Trust Fund and various
Mortgagors".
15. Section 4.16 (Title, Management and Disposition of REO Property) is
hereby amended by (i) replacing the reference to "one year" in the
eighth line of the third paragraph thereof with "three years", (ii)
adding two new paragraphs after the third paragraph thereof to read as
follows:
A-3
In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage
Loan, the Servicer shall dispose of such REO Property not
later than the end of the third taxable year after the year of
its acquisition by the Trust Fund unless the Servicer has
applied for and received a grant of extension from the
Internal Revenue Service to the effect that, under the REMIC
Provisions and any relevant proposed legislation and under
applicable state law, the applicable Trust REMIC may hold REO
Property for a longer period without adversely affecting the
REMIC status of such REMIC or causing the imposition of a
federal or state tax upon such REMIC. If the Servicer has
received such an extension, then the Servicer shall continue
to attempt to sell the REO Property for its fair market value
for such period longer than three years as such extension
permits (the "Extended Period"). If the Servicer has not
received such an extension and the Servicer is unable to sell
the REO Property within the period ending 3 months before the
end of such third taxable year after its acquisition by the
Trust Fund or if the Servicer has received such an extension,
and the Servicer is unable to sell the REO Property within the
period ending three months before the close of the Extended
Period, the Servicer shall, before the end of the three year
period or the Extended Period, as applicable, (i) purchase
such REO Property at a price equal to the REO Property's fair
market value or (ii) auction the REO Property to the highest
bidder (which may be the Servicer) in an auction reasonably
designed to produce a fair price prior to the expiration of
the three-year period or the Extended Period, as the case may
be. The Trustee shall sign any document or take any other
action reasonably requested by the Servicer which would enable
the Servicer, on behalf of the Trust Fund, to request such
grant of extension.
Notwithstanding any other provisions of this Agreement, no REO
Property acquired by the Trust Fund shall be rented (or
allowed to continue to be rented) or otherwise used by or on
behalf of the Trust Fund in such a manner or pursuant to any
terms that would: (i) cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code; or (ii) subject any Trust
REMIC to the imposition of any federal income taxes on the
income earned from such REO Property, including any taxes
imposed by reason of Sections 860F or 860G(c) of the Code,
unless the Servicer has agreed to indemnify and hold harmless
the Trust Fund with respect to the imposition of any such
taxes.
(iii) deleting the first sentence of the fourth paragraph thereto, (iv)
replacing the words "one" and "sentence" with "three" and "paragraph",
respectively, in the sixth line of the fourth paragraph thereto, (v)
replacing the word "advances" in the sixth line of the sixth paragraph
thereof with "Monthly Advances", and (vi) by adding the following to
the end of such Section:
Prior to acceptance by the Servicer of an offer to sell any
REO Property, the Servicer shall notify the Master Servicer of
such offer in writing which notification shall set forth all
material terms of said offer (each a "Notice of Sale"). The
Master Servicer shall be deemed to have approved the sale of
any REO Property unless the Master Servicer notifies the
Servicer in writing, within five (5) days after its receipt of
the related Notice of Sale, that it disapproves of the related
sale, in which case the Servicer shall not proceed with such
sale.
A-4
16. Section 5.01 (Remittances) is hereby amended by adding the following
after the second paragraph of such Section:
All remittances required to be made to the Master
Servicer shall be made to the following wire account or to
such other account as may be specified by the Master Servicer
from time to time:
JPMorgan Chase Bank
New York, New York
ABA #: 000-000-000
Account Name: Aurora Loan Services Inc.
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: Aurora Loan Services 2001-18A
17. Section 5.02 (Statements to Purchaser) is hereby amended in its
entirety to read as follows:
Section 5.02 Statements to Master Servicer.
Not later than the tenth calendar day of each month,
the Servicer shall furnish to the Master Servicer an
electronic file providing loan level accounting data for the
period ending on the last Business Day of the preceding month
in such form as is reasonably acceptable to the Master
Servicer and the Servicer.
18. Section 5.03 (Monthly Advances by Company) is hereby amended by (i)
deleting the words "if requested by a Rating Agency (hereinafter
defined) in connection with a securitization," from the third sentence
thereto; and (ii) deleting the last sentence of such Section.
19. With respect to the SWSA regarding WFHM 2001-02 only, Section 6.04
(Annual Statement as to Compliance) is hereby amended by replacing the
words "May 31, 2001" in the second line of the first sentence thereof
with the words "May 31, 2002".
20. With respect to the SWSA regarding WFHM 2001-02 only, Section 6.05
(Annual Independent Accountants' Servicing Report) is hereby amended by
replacing the words "May 31, 2001" in the first line of the first
sentence thereof with the words "May 31, 2002".
21. Section 8.01 (Indemnification; Third Party Claims) is hereby amended in
its entirety to read as follows:
The Servicer shall indemnify the Bank, the Trust Fund, the
Trustee and the Master Servicer and hold each of them harmless
against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related
costs, judgements, and any other costs, fees and expenses that
any of such parties may sustain in any way related to the
failure of the Servicer to perform its duties and service the
Mortgage Loans in strict compliance with the terms of this
Agreement. The Servicer immediately shall notify the Bank, the
Master Servicer and the Trustee or any other relevant party if
a claim is made by a third party with respect to this
Agreement or the Mortgage Loans, assume (with the prior
written consent of the indemnified party, which consent shall
not be unreasonably withheld or delayed) the defense of any
such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and
satisfy any judgement or decree which may be entered against
it or any of such parties in respect of such claim. The
Servicer shall follow any written instructions received from
the Trustee in connection with such claim. The Servicer shall
provide the Trustee with a written report of all expenses and
advances incurred by the Servicer pursuant to this Section
8.01, and the Trustee from the assets of the Trust Fund
promptly shall reimburse the Servicer for all amounts advanced
by it pursuant to the preceding sentence except when the claim
is in any way relates to the failure of the Servicer to
service and administer the Mortgage Loans in strict compliance
with the terms of this Agreement or the gross negligence, bad
faith or willful misconduct of this Servicer.
A-5
22. Section 10.01 (Events of Default) is hereby amended by:
(a) changing any reference to "Purchaser" to "Master
Servicer"
(b) changing the reference to "five days" to "two
Business Days" in clause (i); and
(c) adding the words "within the applicable cure period"
after the word "remedied" in the first line of the
second paragraph.
23. Section 10.02 (Waiver of Defaults) is hereby amended by changing the
reference to "Purchaser" to "Master Servicer with the prior written
consent of the Trustee".
24. Section 11.01 (Termination) is hereby amended by restating subclause
(ii) thereof to read as below and adding the following sentence after
the first sentence of Section 11.01:
(ii) mutual consent of the Servicer and the Trustee in
writing, provided such termination is also acceptable
to the Master Servicer and the Rating Agencies.
At the time of any termination of the Servicer
pursuant to Section 11.01, the Servicer shall be entitled to
all accrued and unpaid Servicing Fees and unreimbursed
Servicing Advances and Monthly Advances; provided, however, in
the event of a termination for cause under Sections 10.01
hereof, such unreimbursed amounts shall not be reimbursed to
the Servicer until such amounts are received by the Trust Fund
from the related Mortgage Loans.
25. Section 11.02 (Termination Without Cause) is hereby amended by
replacing the first reference to "Purchaser" with "the Bank (with the
prior consent of the Trustee)" and by replacing all other references to
"Purchaser" with "the Bank."
26. Section 12.01 (Successor to Company) is hereby amended in its entirety
to read as follows:
Simultaneously with the termination of the Servicer's
responsibilities and duties under this Agreement pursuant to
Sections 8.04, 10.01, 11.01(ii) or 11.02, the Master Servicer
shall, in accordance with the provisions of the Trust
Agreement (i) succeed to and assume all of the Servicer's
responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor meeting the eligibility
requirements of this Agreement, and which shall succeed to all
rights and assume all of the responsibilities, duties and
liabilities of the Servicer under this Agreement with the
termination of the Servicer's responsibilities, duties and
liabilities under this Agreement. Any successor to the
Servicer that is not at that time a Servicer of other mortgage
loans for the Trust Fund shall be subject to the approval of
the Master Servicer, the Bank, the Trustee and each Rating
Agency (as such term is defined in the Trust Agreement).
Unless the successor servicer is at that time a servicer of
other mortgage loans for the Trust Fund, each Rating Agency
must deliver to the Trustee a letter to the effect that such
transfer of servicing will not result in a qualification,
withdrawal or downgrade of the then-current rating of any of
the Certificates. In connection with such appointment and
assumption, the Master Servicer or the Bank, as applicable,
may make such arrangements for the compensation of such
successor out of payments on the Mortgage Loans as it and such
successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted the Servicer
under this Agreement. In the event that the Servicer's duties,
responsibilities and liabilities under this Agreement should
be terminated pursuant to the aforementioned sections, the
Servicer shall discharge such duties and responsibilities
during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to
exercise under this Agreement, and shall take no action
whatsoever that might impair or prejudice the rights or
financial condition of its successor. The resignation or
removal of the Servicer pursuant to the aforementioned
sections shall not become effective until a successor shall be
appointed pursuant to this Section 12.01 and shall in no event
relieve the Servicer of the representations and warranties
made pursuant to Sections 3.01 and 3.02 and the remedies
available to the Trust Fund under Section 3.03 shall be
applicable to the Servicer notwithstanding any such
resignation or termination of the Servicer, or the termination
of this Agreement.
A-6
Within a reasonable period of time, but in no event
longer than 30 days of the appointment of a successor entity,
the Servicer shall prepare, execute and deliver to the
successor entity any and all documents and other instruments,
place in such successor's possession all Servicing Files, and
do or cause to be done all other acts or things necessary or
appropriate to effect the purposes of such notice of
termination. The Servicer shall cooperate with the Trustee and
the Master Servicer, as applicable, and such successor in
effecting the termination of the Servicer's responsibilities
and rights hereunder and the transfer of servicing
responsibilities to the successor Servicer, including without
limitation, the transfer to such successor for administration
by it of all cash amounts which shall at the time be credited
by the Servicer to the Account or any Escrow Account or
thereafter received with respect to the Mortgage Loans.
Any successor appointed as provided herein shall
execute, acknowledge and deliver to the Trustee, the Servicer
and the Master Servicer an instrument (i) accepting such
appointment, wherein the successor shall make an assumption of
the due and punctual performance and observance of each
covenant and condition to be performed and observed by the
Servicer under this Agreement, whereupon such successor shall
become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer,
with like effect as if originally named as a party to this
Agreement. Any termination or resignation of the Servicer or
termination of this Agreement pursuant to Sections 8.04,
10.01, 11.01 or 11.02 shall not affect any claims that the
Master Servicer or the Trustee may have against the Servicer
arising out of the Servicer's actions or failure to act prior
to any such termination or resignation.
The Servicer shall deliver, within three (3) Business
Days of the appointment of a successor Servicer, the funds in
the Custodial Account and Escrow Account and all Collateral
Files, Credit Files and related documents and statements held
by it hereunder to the successor Servicer and the Servicer
shall account for all funds and shall execute and deliver such
instruments and do such other things as may reasonably be
required to more fully and definitively vest in the successor
all such rights, powers, duties, responsibilities, obligations
and liabilities of the Servicer.
A-7
Upon a successor's acceptance of appointment as such,
the Servicer shall notify the Trustee and Master Servicer of
such appointment in accordance with the notice procedures set
forth herein.
Except as otherwise provided in this Agreement, all
reasonable costs and expenses incurred in connection with any
transfer of servicing hereunder (whether as a result of
termination or removal of the Servicer or resignation of the
Servicer or otherwise), including, without limitation, the
costs and expenses of the Master Servicer or any other Person
in appointing a successor servicer, or of the Master Servicer
in assuming the responsibilities of the Servicer hereunder, or
of transferring the Servicing Files and the other necessary
data to the successor servicer shall be paid by the
terminated, removed or resigning Servicer from its own funds
without reimbursement.
27. Section 12.02 (Amendment) is hereby amended by replacing the words "by
the Company and by written agreement signed by the Company and the
Purchaser" with "written agreement by the Servicer and the Bank, with
the written consent of the Master Servicer and the Trustee".
28. Section 12.04 (Duration of Agreement) is hereby amended by deleting the
last sentence thereof.
29. Section 12.10 (Assignment by Purchaser) is hereby deleted in its
entirety.
30. Section 12.11 (Solicitation of Mortgagor) is hereby amended by
replacing the words "the Purchaser" with "the Bank" in each instance.
31. Intended Third Party Beneficiaries. Notwithstanding any provision
herein to the contrary, the parties to this Agreement agree that it is
appropriate, in furtherance of the intent of such parties as set forth
herein, that the Master Servicer and the Trustee receive the benefit of
the provisions of this Agreement as intended third party beneficiaries
of this Agreement to the extent of such provisions. The Servicer shall
have the same obligations to the Master Servicer and the Trustee as if
they were parties to this Agreement, and the Master Servicer and the
Trustee shall have the same rights and remedies to enforce the
provisions of this Agreement as if they were parties to this Agreement.
The Servicer shall only take direction from the Master Servicer (if
direction by the Master Servicer is required under this Agreement)
unless otherwise directed by this Agreement. Notwithstanding the
foregoing, all rights and obligations of the Master Servicer and the
Trustee hereunder (other than the right to indemnification) shall
terminate upon termination of the Trust Agreement and of the Trust Fund
pursuant to the Trust Agreement.
A-8
EXHIBIT B
Seller's Warranties and Servicing Agreements
B-1
Schedule I
Schedule of Serviced Mortgage Loans
[To be retained at the Philadelphia, PA office of Xxxxxx, Xxxxx & Xxxxxxx LLP]
I-1
