EXHIBIT 99.5
EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of July, 2002, by and between XXXXXX BROTHERS BANK, FSB (the
"Seller" or "Xxxxxx Brothers Bank, FSB"), a federal savings bank and WASHINGTON
MUTUAL BANK, FA (the "Servicer"), a savings association organized under the laws
of the United States, recites and provides as follows:
RECITALS
WHEREAS, the Seller has acquired from the Servicer, Washington Mutual
Bank fsb ("WAMUFSB") and Washington Mutual Bank ("WAMUB") certain conventional,
residential, adjustable rate, first lien mortgage loans (the "Mortgage Loans")
pursuant to (i) a Mortgage Loan Purchase and Sale Agreement among the Servicer,
WAMUFSB, WAMUB and the Seller, dated as of January 1, 2001, as amended by
Amendment No. 1 thereto, dated as of December 1, 2001 and (ii) a Mortgage Loan
Purchase and Sale Agreement among the Servicer, WAMUB and the Seller, dated as
of November 1, 2000 (collectively, the "Purchase Agreement") and annexed as
Exhibit B hereto.
WHEREAS, the Seller has conveyed certain Mortgage Loans identified on
Exhibit C 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 July 1, 2002 (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 Loans are currently being serviced by
the Servicer pursuant to (i) a Servicing Agreement, dated as of January 1, 2001
(for Residential First Lien Mortgage Loans, Group No. 2001-SJ1), as amended by
Amendment No. 1 thereto, dated as of December 1, 2001 (the "2001 Servicing
Agreement") and (ii) a Servicing Agreement, dated as of November 1, 2000 (for
Residential First Lien Mortgage Loans, Group No, 2000-1) (the "2000 Servicing
Agreement" and collectively with the 2001 Servicing Agreement, the "Servicing
Agreement"), and annexed as Exhibit D hereto.
WHEREAS, the Seller 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 Seller 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 Seller and the Servicer agree that the provisions of the
Servicing Agreement shall continue to apply to the Serviced Mortgage Loans, but
only to the extent provided herein and that this Agreement shall (i) constitute
a "Reconstitution Agreement" of those Mortgage Loans (as defined in the
Servicing Agreement) which are Serviced Mortgage Loans and (ii) govern the
servicing of 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 the
conditions specified herein to terminate for cause the rights and obligations of
the Servicer under this Agreement.
WHEREAS, the Seller 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 Seller 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 Servicing
Agreement incorporated by reference herein (regardless of whether such terms are
defined in the Servicing Agreement or Purchase Agreement), shall have the
meanings ascribed to such terms in the Trust Agreement; except, that the
following terms shall have the meaning given to them in the Servicing Agreement
or Purchase Agreement, as the case may be: Account, Assignment of Mortgage,
Business Day, Closing Date, Collateral Files, Condemnation Proceeds, Credit
File, Deleted Mortgage Loan, Eligible Account, Escrow Account, Event of Default,
Master Servicer, Monthly Advances, Monthly Remittance Date, Net Rate, Officer's
Certificate, Opinion of Counsel, Permitted Investments, Principal Prepayment,
Purchase Price, Qualified Substitute Mortgage Loan, Servicing Advance, Seller
(only to the extent such term is used in the Servicing Agreement), Servicing
Fee, Servicing Fee Rate and REO Property.
Notwithstanding the foregoing, the term "Agreement" when used in the
Servicing Agreement or the Purchase Agreement shall have the meaning given to
such term in the Servicing Agreement or the Purchase Agreement, as the case may
be.
2. Custodianship. The parties hereto acknowledge that LaSalle Bank N.A.
will act as custodian of the Collateral Files of the Serviced Mortgage Loans for
the Trustee pursuant to a Custodial Agreement, dated July 1, 2002, between
LaSalle Bank, N.A. (the "Custodian") and the Trustee (the "Custodial
Agreement").
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
applicable Servicing Agreement, except as otherwise provided herein and on
Exhibit A hereto, and that the provisions of the Servicing Agreement, as so
modified and incorporated by reference herein, are and shall be a part of this
Agreement to the same extent as if set forth herein in full. Pursuant to Section
2.17 of each Servicing Agreement, the Servicer acknowledges that a REMIC has
been or will be made with respect to the Trust, and the Servicer shall comply
with the provisions of Section 2.17 of each Servicing Agreement with respect to
the REMIC provisions
4. Trust Cut-off Date. The parties hereto acknowledge that by operation
of Section 2.5 and Section 3.1 of the Servicing Agreement, the remittance on
August 18, 2002 to the SASCO 2002-16A Trust Fund (the "Trust Fund") is to
include principal due after July 1, 2002 (the "Trust Cut-off Date") plus
interest, at the Net 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 (i), (ii) and (if applicable) (iii) of
Section 3.1 of the relevant Servicing Agreement.
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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
Trust Fund created pursuant to the Trust Agreement, shall have the same rights
as the Seller, as owner, under the Servicing Agreement to enforce the
obligations of the Servicer under the Servicing Agreement and the term "Owner"
as used in the Servicing Agreement in connection with any rights of the Owner
shall refer to the Trust Fund or, as the context 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 and
the provisions of the Servicing Agreement to the extent unmodified or unamended
herein 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 6 of the Servicing Agreement (such Article 6 and Article 7 of the
Servicing Agreement remaining unmodified except for the right to terminate with
respect to the Serviced Mortgage Loans being vested in the Master Servicer
pursuant to this Agreement and as expressly described in Exhibit A hereto).
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer assume any of the obligations of the Owner under the Servicing
Agreement and 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 or warranties
regarding the characteristics of the Serviced Mortgage Loans in connection with
the transactions contemplated by the Trust Agreement and issuance of the
Certificates issued pursuant thereto. Notwithstanding the preceding sentence,
the Servicer hereby restates and remakes to the Seller, the Owner, the Master
Servicer, the Trustee and the Trust Fund each representation and warranty in
Section 5.7 of the Servicing Agreement as of July 30, 2002
7. Waiver and Amendment. The parties hereto agree that by execution of
this Agreement and notwithstanding the last sentence of the definition of
"Reconstitution Agreement" contained in Article 1 of the Servicing Agreement,
the Servicer has waived or agreed to modification or amendment of, with respect
to the Serviced Mortgage Loans, certain of the Servicer's rights that it has
pursuant to the provisions of the Servicing Agreement (the "Waiver"). The Waiver
shall extend only to the Serviced Mortgage Loans serviced under this Agreement,
and shall not constitute a waiver or modification of any of the Servicer's
rights under any other provision of the Servicing Agreement with respect to
Mortgage Loans purchased pursuant to the Purchase Agreement other than the
Serviced Mortgage Loans, waive any default by the Owner or impair any right of
the Servicer arising under this Agreement or the Servicing Agreement, in each
case except to the extent expressly so waived in this Section 7. Except as
otherwise provided in this Agreement with respect to the Serviced Mortgage
Loans, the Servicing Agreement shall remain in full force and effect.
8. 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.
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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
Attention: E. Xxxx Xxxxxxxxxx, Master Servicing, SASCO 0000-00X
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled basis 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 No.: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO 2002-16A
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 Seller hereunder shall be
delivered to the Seller at the following address:
Xxxxxx Brothers Bank, FSB
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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All notices required to be delivered to the Servicer hereunder shall be
delivered to the following address:
Washington Mutual Bank, XX
Xxxxxxxxxx Mutual Bank fsb
Washington Mutual Bank
0000 Xxxxx Xxxxxx, XXX0000
Xxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Washington Mutual Xxxx, XX
00000 Xxxxxxx Xx. (Mail Stop N070205)
Xxxxxxxxxx, XX 00000
Attention: Vice President of Investor Reporting
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
9. 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.
10. 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.
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Executed as of the day and year first above written.
XXXXXX BROTHERS BANK, FSB,
as Owner
By:
-----------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
WASHINGTON MUTUAL BANK, FA,
as Servicer
By:
------------------------------------
Name:
Title:
Acknowledged By:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:
--------------------------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
JPMORGAN CHASE BANK,
as Trustee
By:
--------------------------------------
Name: Xxxxxx Xxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to each Servicing Agreement
1. A new definition of "Best Efforts" is hereby added to Article 1 to
immediately follow the definition of "Applicable Requirements," to read
as follows:
Best Efforts: Efforts determined to be reasonably diligent by
the Servicer in its reasonable discretion. Such efforts do not
require the Servicer to enter into any litigation, arbitration
or other legal or quasi-legal proceeding, nor do they require
the Servicer to advance or expend fees or sums of money in
addition to those specifically set forth in this Agreement.
2. The definitions of "Determination Date" and "Due Period" in Article 1
are hereby amended and restated in their entirety, to read as follows:
Determination Date: The fifteenth (15th) day of the calendar
month of the related Monthly Remittance Date (or if such day
is not a Business Day, the Business Day immediately preceding
such day).
Due Period: With respect to each Monthly Remittance Date, the
period commencing on the second day of the month immediately
preceding the month of such Monthly Remittance Date and ending
on the first day of the month of such Monthly Remittance Date.
3. A new definition of "Mortgage Loan" is hereby added to Article 1 to
immediately follow the definition of "Moody's," to read as follows:
Mortgage Loan: An individual servicing retained Mortgage Loan
which has been purchased from Washington Mutual Bank FA,
Washington Mutual Bank fsb or Washington Mutual Bank by Xxxxxx
Brothers Bank, FSB is subject to this Agreement by being
identified on the Mortgage Loan Schedule to this Agreement,
which mortgage loan includes without limitation the rights to
the mortgage loan documents, the monthly reports, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and all other rights, benefits, proceeds
and obligations arising from or in connection with such
Mortgage Loan.
4. A new definition of "Mortgage Loan Schedule" is hereby added to Article
1 to immediately follow the definition of "Mortgage Loan," to read as
follows:
Mortgage Loan Schedule: The schedule of Mortgage Loans setting
forth certain information with respect to the Mortgage Loans
purchased from the Washington Mutual Bank, FA, Washington
Mutual Bank fsb or Washington Mutual Bank by Xxxxxx Brothers
Bank, FSB, which Mortgage Loan Schedule is attached as Exhibit
C to this Reconstituted Servicing Agreement.
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5. The definition of "Qualified Depository" is hereby amended and restated
in its entirety to read as follows:
Qualified Depository: Any of (i) a depository the accounts of
which are insured by the FDIC and the debt obligations of
which are rated AA (or its equivalent) or better by each
Rating Agency; (ii) the corporate trust department of any bank
the debt obligations of which are rated at least A-1 or its
equivalent by each Rating Agency; or (iii) the Servicer, so
long as the long-term unsecured debt obligations of the
Servicer are rated not lower than "A2" by Moody's or "A-" by
S&P.
6. A new definition of "Rating Agency" is hereby added to Article 1 to
immediately follow the definition of "Qualified Depository," to read as
follows:
Rating Agency: Either of Xxxxx'x Investors Service, Inc. or
Standard & Poor's, A Division of the XxXxxx-Xxxx Agencies,
Inc., or any successor of the foregoing.
7. Section 2.1 (Identification of Mortgage Loans; Servicer to Act as
Servicer) is hereby amended by adding the following to the end of
Subsection (c):
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Servicer
shall forward to the Master Servicer copies of any documents
evidencing such assumption, modification, consolidation or
extension.
8. Section 2.3 (Collection of Mortgage Loan Payments) is hereby amended by
replacing the words "Continuously from the first Closing Date until the
principal and interest on all Mortgage Loans are paid in full," in the
case of the 2001 Servicing Agreement and "Continuously from the Closing
Date until the principal and interest on all Mortgage Loans are paid in
full," in the case of the 2000 Servicing Agreement in the first line of
each thereof to "Continuously from July 30, 2002 until the date the
Mortgage Loans cease to be subject to this Agreement."
9. Section 2.4 (Establishment of Account; Deposits in Account) is hereby
amended by: (i) replacing the words "for Xxxxxx Brothers Bank, FSB, as
Owner and any successor Owner" with the words "for SASCO 2002-16A Trust
Fund and various Mortgagors" and (ii) replacing all references to
"Principal Prepayment in Full" in Subparagraph (vii) with "Principal
Prepayment."
10. Section 2.5 (Permitted Withdrawals From the Account) is hereby amended
by deleting the word "and" at the end of clause (vi), by replacing the
period at the end of clause (vii) with a semicolon and by adding the
following new clauses (viii) and (ix):
(viii) to invest funds in the Account in Permitted Investments in
accordance with Section 2.4(d); and
(ix) to transfer funds to another depository institution in
accordance with Section 2.9 hereof.
11. Section 2.6 (Establishment of Escrow Account; Deposits in Escrow
Account; Escrow Analysis) is hereby amended by replacing the words "for
Xxxxxx Brothers Bank, FSB, as Owner and any successor Owner, and
certain Mortgagors" with "for SASCO 2002-16A Trust Fund and various
Mortgagors."
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12. Section 2.12 (Title, Management and Disposition of Real Estate Owned)
is hereby amended by:
(i) substituting, for existing paragraph (a), a new paragraph (a)
as follow:
(a) If title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure ("REO
Property"), the deed or certificate of sale shall be taken in
the name of the Trustee, or in the name of such Person or
Persons designated by the Trustee, provided, however, that (i)
the Trustee shall not designate the Servicer as holder without
the Servicer's prior written consent and (ii) such designated
Person or Persons shall acknowledge in writing that such title
is to be held as nominee for the Trustee. The Servicer shall
provide written notice to the Trustee after any REO Property
is acquired in foreclosure or by deed in lieu of foreclosure.
(ii) deleting the last sentence of Subsection (c) and adding the
following at the end of such Subsection (c):
The Servicer shall use its Best Efforts to dispose of
the REO Property as soon as possible and shall sell such REO
Property in any event within three years after title has been
taken to such REO Property, unless (a) a REMIC election has
not been made with respect to the arrangement under which the
Mortgage Loans and the REO Property are held, and (b) the
Servicer determines, and gives an appropriate notice to the
Master Servicer to such effect, that a longer period is
necessary for the orderly liquidation of such REO Property. If
a period longer than three years is permitted under the
foregoing sentence and is necessary to sell any REO Property,
(i) the Servicer shall report monthly to the Master Servicer
as to the progress being made in selling such REO Property and
(ii) if, with the written consent of the Trustee, a purchase
money mortgage is taken in connection with such sale, such
purchase money mortgage shall name the Servicer as mortgagee,
and such purchase money mortgage shall not be held pursuant to
this Agreement, but instead a separate participation agreement
among the Servicer and Trustee shall be entered into with
respect to such purchase money mortgage. Notwithstanding
anything herein to the contrary, the Servicer shall not be
required to provide financing for the sale of any REO
Property.
(iii) by adding the following to the end of Subsection (f):
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.
13. Section 3.1 (Distributions) is hereby amended as follows:
(i) by modifying the second paragraph of such Section to read as
follows:
Distributions on each Monthly Remittance date may be made by
more than one wire transfer or check, as the case may be.
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(ii) by adding the following after the third 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 No.: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO 2002-16A
14. Section 3.2 (Reports) is hereby amended as follows:
(i) by modifying the last paragraph of Subsection (a) to read as
follows:
The Servicer may submit the foregoing information in more than
one separate report.
(ii) by adding the following new paragraph after the last paragraph
in Subsection (a):
Reports submitted pursuant to this Section 3.2 shall
also include the amount of any Monthly Advances made by the
Servicer on such Monthly Remittance Date. In addition, on a
cumulative basis and upon reasonable request of the Master
Servicer, the Servicer will provide information regarding
which Mortgage Loans are covered by Primary Mortgage Insurance
Policy and the amount of any (i) claims filed under any
Primary Mortgage Insurance Policy, (ii) claim payments made
under any Primary Mortgage Insurance Policy and (iii) claims
denied under any Primary Mortgage Insurance Policy.
(iii) By replacing the paragraph (b) of such Section in its entirety
with the following paragraph:
Beginning with calendar year 2003, the Servicer shall
prepare and file any and all tax returns, information
statements or other filings for the portion of the tax year
2002 and the portion of subsequent tax years for which the
Servicer has serviced some or all of the Mortgage Loans
hereunder as such returns, information statements or other
filings are required to be delivered to any governmental
taxing authority or to the Master Servicer pursuant to any
applicable law with respect to the Mortgage Loans and the
transactions contemplated hereby. In addition, the Servicer
shall provide the Master Servicer with such information
concerning the Mortgage Loans as is necessary for the Master
Servicer to prepare the Trust Fund's federal income tax return
as the Master Servicer may reasonably request from time to
time.
15. Section 4.4 (Statements as to Compliance) is hereby amended by
replacing all references to "Owner" in such Section with "Xxxxxx
Brothers Bank FSB and the Master Servicer."
16. Section 4.5 (Annual Independent Public Accountants' Servicing Report)
is hereby amended by replacing all references to "Owner" in such
Section with "Xxxxxx Brothers Bank FSB and the Master Servicer."
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17. Section 5.1 (Indemnification; Third Party Claims) is hereby amended by
deleting Subsection (a) and replacing it with the following:
(a) The Servicer shall indemnify Xxxxxx Brothers Bank FSB, 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 compliance with the terms of
this Agreement; provided, however, the Servicer shall not be
liable hereunder with respect to (i) any action or inaction in
accordance with the written direction or consent of the
Trustee, Trust Fund, Master Servicer or Xxxxxx Brothers Bank
FSB or (ii) any action or inaction resulting from the
Trustee's, Trust Fund's, Master Servicer's or Xxxxxx Brothers
Bank FSB's, failure to cause any Collateral File (or portion
thereof) to be released to the Servicer pursuant to terms of
this Agreement or (iii) any action or inaction resulting from
the Trust Fund's failure to comply with Section 5.1(b). The
Servicer shall promptly notify Xxxxxx Brothers Bank FSB, the
Master Servicer and the Trustee 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 reasonable
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 indemnified
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 5.1, and the
Trustee, from the assets of the Trust Fund, shall promptly
reimburse the Servicer for all amounts advanced by the
Servicer pursuant to this Section 5.1(a) 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
compliance with the terms of this Agreement or the gross
negligence, bad faith or willful misconduct of the Servicer.
The Trust Fund shall indemnify the Servicer and hold
it harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other costs, fees
and expenses that the Servicer may sustain in any way related
to the failure of the Trust Fund to perform its duties in
compliance with the terms of this Agreement or the Trust
Agreement.
18. Section 6.1 (Events of Default) is hereby amended by changing all
references to "Owner" with "Master Servicer" in such Section and
deleting Subsection (vi) and replacing it with the following:
(vi) the Servicer at any time is neither a Xxxxxx Xxx
or Xxxxxxx Mac approved servicer, and the Master Servicer has
not terminated the rights and obligations of the Servicer
under this Agreement and replaced the Servicer with a Xxxxxx
Mae or Xxxxxxx Mac approved servicer within 30 days of the
absence of such approval; or
19. The parties hereto acknowledge that the word "Owner" in Section 6.2
(Waiver of Defaults) shall refer to the "Master Servicer with the prior
consent of the Trustee."
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20. Section 9.1 (Successor to the Servicer) is hereby amended in its
entirety to read as follows:
(a) Simultaneously with the termination of the
Servicer's responsibilities and duties under this Agreement
pursuant to Sections 5.4, 6.1, 7.1 or 7.2 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, Xxxxxx Brothers Bank FSB, 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 Xxxxxx
Brothers Bank FSB, 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, and be compensated therefor as
provided in this Agreement, 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 9.1 and
shall in no event relieve the Servicer of the representations
and warranties made pursuant to Section 5.7 prior to such
resignation or termination, which representations and
warranties shall be applicable to the Servicer notwithstanding
any such resignation or termination of the Servicer, or the
termination of this Agreement.
(b) Within a reasonable period of time, but in no
event longer than 30 Business 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
Collateral Files and Credit Files, and do or cause to be done
all other acts or things necessary or appropriate to effect
the purposes of such 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, 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 the Escrow Account or
thereafter received with respect to the Mortgage Loans, in
each case to which the Servicer is not entitled pursuant to
this Agreement.
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(c) 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 6.1 or 7.1
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.
(d) The Servicer shall deliver within three (3)
Business Days after the effective date of such resignation or
termination to the successor the funds in the Account and
Escrow Account, in each case to which the Servicer is not
entitled pursuant to this Agreement and all Collateral Files,
Credit Files and related documents and statements held by it
hereunder 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.
(e) Upon a successor's acceptance of appointment as
such, the Servicer, the Master Servicer and the Trustee shall
each notify the others of such appointment, but only if and to
the extent of having actual knowledge of such appointment.
(f) Notwithstanding any termination pursuant to this
Agreement, the Servicer shall continue to be entitled to
receive all amounts accrued or owing to it under this
Agreement on or prior to the effective date of such
termination, whether in respect of Servicing Advances, Monthly
Advances, Servicing Fees or other servicing compensation, and
shall continue to be entitled to the benefits of Section 5.3
notwithstanding any such termination, with respect to events
occurring prior to such termination.
21. A new Section 9.15 is hereby added to read as follows:
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 any
other terms of this Agreement, the parties agree that the
overriding intent is for the Servicer to be entitled to deal
with and through the Master Servicer in virtually all
circumstances. This intent is not altered by anything herein,
including without limitation, the following: any third party
beneficiary designation of the Trustee; any requirement that
the Servicer give notice to others with respect to third party
claims; any indemnification of the Servicer for following
instructions of others in selected circumstances; any
indemnifications running from the Servicer to others; or any
provisions allowing the Servicer in any circumstance to rely
on instructions from others. 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; and upon such
termination of the Trust Fund and the Trust Agreement, the
Serviced Mortgage Loans shall no longer be governed by this
Agreement but will be governed by terms of the relevant
Servicing Agreement.
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EXHIBIT B
Purchase Agreement
[Intentionally Omitted]
EXHIBIT C
Mortgage Loan Schedule
[Intentionally Omitted]
EXHIBIT D
Servicing Agreement
[See Exhibits #99.7 through #99.9]
