Exhibit 99.8
EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into as
of the 1st day of October 2002, by and between XXXXXX BROTHERS BANK, FSB, a
federal savings bank (the "Bank"), and SUNTRUST MORTGAGE, INC., a Virginia
corporation (the "Servicer") having an office at 0000 Xxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000, recites and provides as follows:
RECITALS
WHEREAS, Centre Capital Group, Inc. ("CCGI") acquired certain first lien,
fixed and adjustable rate, conventional mortgage loans on a servicing-retained
basis from the Servicer, which mortgage loans were either originated or acquired
by the Servicer.
WHEREAS, such mortgage loans are currently being serviced by the Servicer
for CCGI pursuant to a Master Servicing Agreement for Fixed and Adjustable Rate
Mortgage Loans (the "Master Servicing Agreement"), dated as of May 2000 and
annexed as Exhibit B hereto, by and between CCGI, as owner, and the Servicer, as
servicer.
WHEREAS, pursuant to the Master Mortgage Loan Purchase and Warranties
Agreement, dated as of February 1, 2002 (the "Master Mortgage Loan Purchase
Agreement"), and annexed as Exhibit C hereto, the Bank has purchased or received
from CCGI all of CCGI's right, title and interest in and to certain of the
mortgage loans currently serviced under the Master Servicing Agreement
(hereinafter, the "Mortgage Loans") and assumed for the benefit of the Servicer
and the obligations of CCGI as owner under such Agreement.
WHEREAS, the Bank has conveyed certain of the Mortgage Loans, as
identified on Exhibit D 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 Citibank, N.A. (the
"Trustee"), pursuant to a trust agreement dated as of October 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 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 (with the consent of the Master Servicer) to terminate the
rights and obligations of the Servicer hereunder at any time without cause in
accordance with Section 9.02 of the Master Servicing Agreement and to the other
conditions set forth herein.
WHEREAS, the Bank and the Servicer agree that the provisions of the Master
Servicing Agreement shall continue to apply to the Serviced Mortgage Loans, but
only to the extent provided herein and that this Agreement shall constitute a
Reconstitution Agreement (as such term is defined in the Master Servicing
Agreement) which shall govern the Serviced Mortgage Loans for so long as such
Serviced Mortgage Loans remain subject to the provisions of the Trust Agreement.
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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 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 Master Servicing Agreement
incorporated by reference herein (regardless of whether such terms are defined
in the Master Servicing Agreement), shall have the meanings ascribed to such
terms in the Trust Agreement.
2. 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 Master Servicing
Agreement, except as otherwise provided herein and on Exhibit A hereto, and that
the provisions of the Master Servicing Agreement, as so modified, are and shall
be a part of this Agreement to the same extent as if set forth herein in full.
3. 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
2002-22H Trust Fund (the "Trust Fund") created pursuant to the Trust Agreement,
shall have the same rights as the Bank, as owner, under the Master Servicing
Agreement to enforce the obligations of the Servicer under the Master Servicing
Agreement and the term "Owner" as used in the Master 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 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 Section 9.01 of the Master Servicing Agreement.
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer assume any of the obligations of the Bank under the Master Servicing
Agreement; 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.
4. No Representations. Neither the Servicer nor the Master Servicer shall
be obligated or required to make any representations and warranties regarding
the characteristics of
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the Serviced Mortgage Loans in connection with the transactions contemplated by
the Trust Agreement and issuance of the Certificates issued pursuant thereto.
5. 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
Attention: E. Xxxx Xxxxxxxxxx, Master Servicing, SASCO/ALS 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/ALS 2002-22H
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
Citibank, N.A.
000 Xxxx Xxxxxx
14th Floor, Xxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance-SASCO 0000-00X
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:
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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
All notices required to be delivered to the Servicer hereunder shall be
delivered to the address of its office as set forth in the first paragraph of
this Agreement, to the attention of Investor Services Manager; Telephone:
000-000-0000; Telecopier: 000-000-0000.
6. 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.
7. 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.
8. Reconstitution. The Bank and the Servicer agree that this Agreement is
a "Reconstitution Agreement" and that the date hereof is the "Reconstitution
Date", each as defined in the Master Servicing Agreement.
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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
SUNTRUST MORTGAGE, INC.,
as Servicer
By:
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
Acknowledged By:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:
--------------------------------------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
CITIBANK, N.A.,
as Trustee
By:
--------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to the Master Servicing Agreement
1. Unless otherwise specified herein, any provisions of the Master Servicing
Agreement, including definitions, relating to (i) representations and
warranties of the Owner and (ii) Whole-Loan Transfers, Pass-Through
Transfers, Acknowledgement Agreements, Closing Dates, Cut-off Dates and
First Remittance Dates shall be disregarded. Unless otherwise specified
herein, for purposes of this Agreement, the exhibits to the Master
Servicing Agreement and all references to such exhibits shall also be
disregarded.
2. The definition of "Custodial Agreement" in Article I is hereby amended in
its entirety to read as follows:
"Custodial Agreement" means the Trust Agreement.
3. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
"Custodian" means Xxxxx Fargo Bank Minnesota, N.A. ---------
4. The definition of "Due Period" in Article I is hereby amended in its
entirety to read as follows:
"Due Period": With respect to each Remittance Date, the period
commencing on the second day of the month immediately preceding the
month of such Remittance Date and ending on the first day of the
month of such Remittance Date.
5. The definition of "Eligible Investments" in Article I is hereby amended in
its entirety to read as follows:
"Eligible Investments": Any one or more of the obligations and
securities listed below which investment provides for a date of
maturity not later than the Determination Date in each month:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and
credit of the United States of America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued by, any
depository institution or trust company (including U.S. subsidiaries
of foreign depositories and the Trustee or any agent of the Trustee,
acting in its respective commercial capacity) incorporated or
organized under the laws of the United States of America or any
state thereof and subject to supervision and examination by federal
or state
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banking authorities, so long as at the time of investment or the
contractual commitment providing for such investment the commercial
paper or other short-term debt obligations of such depository
institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a
holding company, the commercial paper or other short-term debt or
deposit obligations of such holding company or deposit institution,
as the case may be) have been rated by each Rating Agency in its
highest short-term rating category or one of its two highest
long-term rating categories;
(iii) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by Xxxxxx Xxx, Xxxxxx Xxx or
Xxxxxxx Mac with any registered broker/dealer subject to Securities
Investors' Protection Corporation jurisdiction or any commercial
bank insured by the FDIC, if such broker/dealer or bank has an
uninsured, unsecured and unguaranteed obligation rated by each
Rating Agency in its highest short-term rating category;
(iv) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States
of America or any state thereof which have a credit rating from each
Rating Agency, at the time of investment or the contractual
commitment providing for such investment, at least equal to one of
the two highest long-term credit rating categories of each Rating
Agency; provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held as part of the
Trust Fund to exceed 20% of the sum of the aggregate principal
balance of the Mortgage Loans; provided, further, that such
securities will not be Eligible Investments if they are published as
being under review with negative implications from either Rating
Agency;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 180 days after the date
of issuance thereof) rated by each Rating Agency in its highest
short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of
the United States of America or its agencies or instrumentalities
(which obligations are backed by the full faith and credit of the
United States of America) held by a custodian in safekeeping on
behalf of the holders of such receipts; and
(viii) any other demand, money market, common trust fund or
time deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating
Agency or (B) that would not adversely affect the then current
rating by each Rating Agency of any of the Certificates. Such
investments in this subsection (viii) may include money market
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mutual funds or common trust funds, including any fund for which the
Trustee, the Master Servicer or an affiliate thereof serves as an
investment advisor, administrator, shareholder servicing agent,
and/or custodian or subcustodian, notwithstanding that (x) the
Trustee, the Master Servicer or an affiliate thereof charges and
collects fees and expenses from such funds for services rendered,
(y) the Trustee, the Master Servicer or an affiliate thereof charges
and collects fees and expenses for services rendered pursuant to
this Agreement, and (z) services performed for such funds and
pursuant to this Agreement may converge at any time, provided,
however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only
interest payments with respect to the obligations underlying such
instrument, or (ii) both principal and interest payments derived
from obligations underlying such instrument and the principal and
interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of
such underlying obligations.
6. The definition of "Xxxxxx Xxx" is hereby added to Article I to immediately
follow the definition of "Xxxxxxx Mac":
"Xxxxxx Xxx": The Government National Mortgage Association, or any
successor thereto.
7. The definition of "Monthly Advance" in Article I is hereby amended in its
entirety to read as follows:
"Monthly Advance" means, with respect to each Remittance Date and
each Mortgage Loan, an amount equal to the Monthly Payment (with the
interest portion of such Monthly Payment adjusted to the Mortgage
Loan Remittance Rate) that was due on the Mortgage Loan, and that
(i) was delinquent at the close of business on the related
Determination Date and (ii) was not the subject of a previous
Monthly Advance, but only to the extent that such amount is
expected, in the reasonable judgment of the Servicer, to be
recoverable from collections or other recoveries in respect of such
Mortgage Loan.
8. The definition of "Mortgage Loan" in Article I is hereby amended in its
entirety to read as follows:
"Mortgage Loan": An individual servicing retained Mortgage Loan
which has been assigned by CCGI to the Bank pursuant to the Master
Mortgage Loan Purchase Agreement and is subject to this Agreement
being identified on the Mortgage Loan Schedule to this Agreement,
which Mortgage Loan includes without limitation the Mortgage Loan
documents, the Monthly Reports, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition
Proceeds and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan.
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9. The definition of "Mortgage Loan Schedule" in Article I is hereby amended
in its entirety to read as follows:
"Mortgage Loan Schedule": The schedule of Mortgage Loans setting
forth certain information with respect to the Mortgage Loans which
were acquired by the Bank pursuant to the Master Mortgage Loan
Purchase Agreement, which Mortgage Loan Schedule is attached as
Exhibit D to this Agreement.
10. The definition of "Opinion of Counsel" in Article I is hereby amended by
replacing the period at the end of such definition with a semicolon and
adding the following proviso:
provided that any Opinion of Counsel relating to (a) qualification
of the Mortgage Loans in a REMIC or (b) compliance with the REMIC
Provisions, must be an opinion of counsel who (i) is in fact
independent of the Servicer and the Master Servicer of the Mortgage
Loans, (ii) does not have any material direct or indirect financial
interest in the Servicer or the Master Servicer of the Mortgage
Loans or in an affiliate of either and (iii) is not connected with
the Servicer or the Master Servicer of the Mortgage Loans as an
officer, employee, director or person performing similar functions.
11. The definition of "Prepayment Interest Shortfall Amount" in Article I is
hereby amended by inserting the words (i) "voluntary (not including
discounted payoffs)" between the words "a" and "Principal" in the second
line thereof, (ii) "or in part" between the words "full" and "during" in
the second line thereof and (iii) "for Principal Prepayments in full only"
at the end of the parenthetical appearing in the fourth ands fifth lines
thereof.
12. The definition of "Qualified Depository" is hereby amended and restated in
its entirety to read as follows:
"Qualified Depository": Any of (i) a federal or state-chartered
depository institution the accounts of which are insured by the FDIC
and whose commercial paper, short-term debt obligations or other
short-term deposits are rated at least "A-1+" by Standard & Poor's
if the deposits are to be held in the account for less than 30 days,
or whose long-term unsecured debt obligations are rated at least
"AA-" by Standard & Poor's if the deposits are to be held in the
account for more than 30 days, or (ii) the corporate trust
department of a federal or state-chartered depository institution
subject to regulations regarding fiduciary funds on deposit similar
to Title 12 of the Code of Federal Regulations Section 9.10(b),
which, in either case, has corporate trust powers, acting in its
fiduciary capacity, or (iii) Xxxxxx Brothers Bank, F.S.B., a federal
savings bank.
13. The definition of "Qualified GIC" is hereby added to Article I to
immediately follow the definition of "Qualified Depository", to read as
follows:
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"Qualified GIC": A guaranteed investment contract or surety bond
providing for the investment of funds in the Custodial Account and
insuring a minimum, fixed or floating rate of return on investments
of such funds, which contract or surety bond shall:
(a) be an obligation of an insurance company or other
corporation whose long-term debt is rated by each Rating Agency in
one of its two highest rating categories or, if such insurance
company has no long-term debt, whose claims paying ability is rated
by each Rating Agency in one of its two highest rating categories,
and whose short-term debt is rated by each Rating Agency in its
highest rating category;
(b) provide that the Servicer may exercise all of the rights
under such contract or surety bond without the necessity of taking
any action by any other Person;
(c) provide that if at any time the then current credit
standing of the obligor under such guaranteed investment contract is
such that continued investment pursuant to such contract of funds
would result in a downgrading of any rating of the Servicer, the
Servicer shall terminate such contract without penalty and be
entitled to the return of all funds previously invested thereunder,
together with accrued interest thereon at the interest rate provided
under such contract to the date of delivery of such funds to the
Trustee;
(d) provide that the Servicer's interest therein shall be
transferable to any successor Servicer or the Master Servicer
hereunder; and
(e) provide that the funds reinvested thereunder and accrued
interest thereon be returnable to the Custodial Account, as the case
may be, not later than the Business Day prior to any Determination
Date.
14. The definition of "Servicing Fee" in Article I is hereby amended in its
entirety to read as follows:
"Servicing Fee": An amount equal to one-twelfth the product of (a)
the Servicing Fee Rate and (b) the outstanding principal balance of
the Mortgage Loan. The Servicing Fee is payable solely from the
interest portion (including recoveries with respect to interest from
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds) of such Monthly Payment collected by the
Servicer or as otherwise provided under this Agreement.
15. The parties hereto acknowledge that Section 2.02 (Books and Records) shall
be modified to indicate that the Servicer shall prepare and execute at the
direction of the Bank any note endorsements in connection with transfer of
the Mortgage Loans to the Trust Fund as the Owner of the Mortgage Loans
and that the Bank shall pay for any fees associated with the preparation
and execution of such note endorsements to the Trust Fund.
16. The parties hereto acknowledge that Section 2.03 (Commencement of
Servicing Responsibilities) shall be inapplicable to this Agreement.
17. The parties hereto acknowledge that Section 2.04 (Custodial Agreement)
shall be inapplicable to this Agreement, as superseded by the provisions
of the Custodial Agreement and the Trust Agreement.
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18. The parties hereto acknowledge that Section 3.01 (Servicer to Service) is
hereby amended by adding the following sentences 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 Servicer 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 Servicer 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.
19. The parties hereto acknowledge that references to the "Owner" in the
second and third paragraphs of Section 3.02 shall refer to the Master
Servicer, except that the expense of any environmental inspection or
review at the request of the Master Servicer shall be an expense of the
Trust Fund.
20. The parties hereto acknowledge that the (i) reference to "[Servicer]" in
the fourth line of the first paragraph of Section 3.04 shall be to
"Suntrust Mortgage, Inc.", (ii) reference to "[Owner]" in the fourth line
of the first paragraph of Section 3.04 shall be to the "SASCO 2002-22H
Trust Fund" and (iii) reference to "Cut-off Date" in the second paragraph
of Section 3.04 shall mean the "close of business on October 1, 2002."
21. Section 3.06 (Establishment of and Deposits to Escrow Account) is hereby
amended by changing the words "[Servicer] in trust for [Owner]" appearing
in the fourth line of the first paragraph thereof to "Suntrust Mortgage,
Inc. in trust for the SASCO 2002-22H Trust Fund."
22. The parties acknowledge that Section 3.18 (Title, Management and
Disposition of REO Property) is hereby amended by adding the following
sentences at 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.
23. Section 4.02 (Statements to Owner) is hereby amended in its entirety to
read as follows:
4.02 Statements to the Master Servicer
(a) Not later than the tenth calendar day of each month or, if
such calendar day is not a Business Day, the immediately preceding
Business Day, the Servicer shall furnish to the Master Servicer: (i)
a monthly remittance advice in
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the format set forth in Exhibit E-1 hereto and a monthly defaulted
loan report in the format set forth in Exhibit E-2 hereto (or in
such other format mutually agreed upon by the Servicer and Master
Servicer) (collectively, the "Monthly Remittance Advice") as to the
accompanying remittance and the period ending on the last calendar
day of the preceding month and (ii) all such information required
pursuant to clause (i) above on a magnetic tape or other similar
media reasonably accepted by the Master Servicer.
(b) 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.
(c) The Monthly Remittance Advice shall also include on a
current and cumulative basis the amount of any (i) claims filed,
(ii) claim payments made, (iii) claims denied and (iv) policies
cancelled with respect to those Serviced Mortgage Loans covered by
any PMI Policy or LPMI Policy.
24. Section 4.03 (Monthly Advances by Servicer) is hereby amended by adding
the following new sentence immediately following the first sentence of
such section:
Any amounts held for future distribution and so used to make
Monthly Advances shall be replaced by the Servicer by deposit in the
Custodial Account on or before any future Remittance Date if funds
in the Custodial Account on such Remittance Date shall be less than
payments to the Trust Fund required to be made on such Remittance
Date.
25. Section 5.01 (Servicing Compensation) is hereby amended by adding the
following sentence at the end of such Section:
The Servicer shall be required to pay all expenses incurred by
it in connection with its servicing activities hereunder and shall
not be entitled to reimbursement thereof except as specifically
provided for herein.
26. Section 5.06 (Annual Independent Public Accountants' Servicing Report) is
hereby amended and restated in its entirety to read as follows:
Section 5.06 Annual Audit Report.
On or before the last day of February of each year, beginning
with February 28, 2003, Servicer shall, at its own expense, cause a
firm of independent
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public accountants (who may also render other services to Servicer),
which is a member of the American Institute of Certified Public
Accountants, to furnish to the Seller and Master Servicer (i)
year-end audited (if available) financial statements of the Servicer
and (ii) a statement to the effect that such firm has examined
certain documents and records for the preceding fiscal year (or
during the period from the date of commencement of such Servicer's
duties hereunder until the end of such preceding fiscal year in the
case of the first such certificate) and that, on the basis of such
examination conducted substantially in compliance with the Uniform
Single Attestation Program for Mortgage Bankers, such firm is of the
opinion that Servicer's overall servicing operations have been
conducted in compliance with the Uniform Single Attestation Program
for Mortgage Bankers except for such exceptions that, in the opinion
of such firm, the Uniform Single Attestation Program for Mortgage
Bankers requires it to report, in which case such exceptions shall
be set forth in such statement.
27. A new Section 5.07 is hereby added to the Master Servicing Agreement to
read as follows:
Section 5.07 Annual Officer's Certificate.
On or before the last day of February of each year, beginning
with February 28, 2003, the Servicer, at its own expense, will
deliver to the Bank and the Master Servicer a Servicing Officer's
certificate stating, as to each signer thereof, that (i) a review of
the activities of the Servicer during such preceding fiscal year and
of performance under this Agreement has been made under such
officers' supervision, and (ii) to the best of such officers'
knowledge, based on such review, the Servicer has fulfilled all its
obligations under this Agreement for such year, or, if there has
been a default in the fulfillment of all such obligations,
specifying each such default known to such officer and the nature
and status thereof including the steps being taken by the Servicer
to remedy such default.
28. The second, third and fourth paragraphs of Section 6.02 (Remedies for
Breach of Representations and Warranties of the Servicer) are hereby
restated to read as follows:
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 6.01 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 Mortgage 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
Mortgage 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 10.01.
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In addition, the Servicer shall indemnify (from its own funds)
the Trustee, the Trust Fund and the 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 6.02 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 6.01 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.
29. The parties hereto acknowledge that Section 6.03 (Representations and
Warranties of the Owner), Section 6.04 (Remedies for Breach of
Representations and Warranties of Owner) Section 7.01 (Removal of Mortgage
Loans from Inclusion Under the Agreement Upon a Pass-Through Transfer or a
Whole Loan Transfer on One or More Reconstituted Dates) and Section 7.02
(Owner's Repurchase and Indemnification Obligation) are inapplicable to
this Agreement.
30. Section 7.03 (Indemnification; Third Party Claims) is hereby amended in
its entirety to read as follows:
The Servicer shall indemnify 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, judgments,
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) the defense of any such claim and
pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment 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 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 related to the Servicer's
indemnification pursuant to Section 6.02, or the failure of the
Servicer to service and administer the Mortgage Loans in strict
compliance with the terms of this Agreement.
The Trust Fund shall indemnify the Servicer and hold it
harmless against
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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 Trustee or the Master
Servicer to perform its duties in compliance with the terms of this
Agreement.
In the event a dispute arises between an indemnified party and
the Servicer with respect to any of the rights and obligations of
the parties pursuant to this Agreement and such dispute is
adjudicated in a court of law, by an arbitration panel or any other
judicial process, then the losing party shall indemnify and
reimburse the winning party for all attorney's fees and other costs
and expenses related to the adjudication of said dispute.
31. Section 8.02 is hereby amended by changing the word "Owner" to "Trustee"
where it appears in the proviso to the third sentence thereof and the word
"Owner" to "Trust Fund" in the fourth sentence of such Section.
32. The first paragraph of Section 8.03 (Limitation on Resignation and
Assignment by Servicer) is hereby amended in its entirety to read as
follows:
The Servicer shall neither assign this Agreement or the
servicing hereunder or delegate its rights or duties hereunder or
any portion hereof (to other than a third party in the case of
outsourcing routine tasks such as taxes, insurance and property
inspection, in which case the Servicer shall fully liable for such
tasks as if the Servicer performed them itself) or sell or otherwise
dispose of all or substantially all of its property or assets
without the prior written consent of the Trustee and the Master
Servicer, which consent shall be granted or withheld in the
reasonable discretion of such parties, provided, however, that the
Servicer may assign its rights and obligations hereunder without
prior written consent of the Trustee and the Master Servicer to any
entity that is directly owned or controlled by the Servicer, and the
Servicer guarantees the performance of such entity hereunder. In the
event of such assignment by the Servicer, the Servicer shall provide
the Trustee and the Master Servicer with a written statement
guaranteeing the successor entity's performance of the Servicer's
obligations under the Agreement.
References to "Owner" in the second and third paragraph of Section 8.03
shall refer to the "Master Servicer acting at the direction, or with the prior
consent of, the Trustee".
33. Section 9.01 is hereby amended by changing the references to "Owner" in
the third and fourth paragraph of such section to "Master Servicer."
34. Section 9.02 (Termination Without Cause) is hereby amended in its entirety
to read as follows:
Section 9.02 Termination Without Cause.
This Agreement shall terminate upon: (i) the later of (a) the
distribution of
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the final payment or liquidation proceeds on the last Mortgage Loan
to the Owner (or advances by the Servicer for the same), and (b) the
disposition of all REO Property acquired upon foreclosure of the
last Mortgage Loan and the remittance of all funds due hereunder, or
(ii) mutual consent of the Servicer, the Bank and the Master
Servicer in writing or (iii) at the sole option of the Bank, without
cause, upon 30 days written notice. Any such notice of termination
shall be in writing and delivered to the Servicer by registered mail
to the address set forth at the beginning of this Agreement. The
Master Servicer, the Trustee and the Servicer shall comply with the
termination procedures set forth in Sections 10.01 and 10.03 hereof
and the procedures set forth below, provided that, in the event the
Bank terminates this Agreement without cause in accordance with
subclause (iii) above, the Bank shall pay the Servicer a termination
fee equal to 2.0% of the aggregate unpaid balance of the Mortgage
Loans as of such termination date.
In connection with any such termination referred to in clause
(ii) or (iii) above, the Bank will be responsible for reimbursing
the Servicer for all unreimbursed out-of-pocket Servicing Advances
within 15 Business Days following the date of termination and other
reasonable and necessary out-of-pocket costs associated with any
transfer of servicing.
Notwithstanding and in addition to the foregoing, in the event
that (i) a Mortgage Loan becomes delinquent for a period of 90 days
or more (a "Delinquent Mortgage Loan") or (ii) a Mortgage Loan
becomes an REO Property, the Bank may at its election terminate this
Agreement (a) with respect to such Delinquent Mortgage Loan or (b)
REO Property, in each case, upon 15 days' written notice to the
Servicer. In the event of such election, the Bank shall reimburse
the Servicer for all unreimbursed out-of-pocket Servicing Advances
and Monthly Advances on the date of termination and other reasonable
and necessary out-of-pocket costs associated with any transfer of
servicing, including, but not limited to, costs associated with the
transfer of the related files to the Owner's designee.
35. Section 10.01 (Successor to the Servicer) is hereby amended in its
entirety to read as follows:
Simultaneously with the termination of the Servicer's
responsibilities and duties under this Agreement (a) pursuant to
Sections 6.02, 7.03, 8.03, 9.01 or 9.02, 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
servicer meeting the eligibility requirements of this Agreement set
forth in Sections 8.01(i) and (ii) 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
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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 Depositor, 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 10.01 and shall in no event relieve the
Servicer of the representations and warranties made pursuant to
Section 6.01 and the remedies available to the Trustee under
Sections 6.02 and 7.03, it being understood and agreed that the
provisions of such Sections 6.01, 6.02 and 7.03 shall be applicable
to the Servicer notwithstanding any such resignation or termination
of the Servicer, or the termination of this Agreement.
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 Custodial
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 the representations and warranties set forth in
Section 6.01 and (ii) 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 9.01
and 9.02
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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 (i) within three (3) Business Days
to the successor Servicer the funds in the Custodial Account and
Escrow Account and (ii) within 30 Business Days all Mortgage Loan
Documents 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.
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 as a result of a termination of the Servicer for
cause pursuant to Section 9.01 of the Agreement, 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.
36. The parties hereto acknowledge that Section 10.02 (Closing), Section 10.03
(Closing Documents), Section 10.07 (Notices) and Section 10.16 (Exhibits)
are inapplicable to this Agreement.
37. A new Section 10.19 is hereby added to the Master Servicing Agreement to
read as follows:
Section 10.19 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
A-13
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.
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EXHIBIT B
Master Servicing Agreement
[See Exhibit 99.16]
EXHIBIT C
Master Mortgage Loan Purchase and Warranties Agreement
[INTENTIONALLY OMITTED]
EXHIBIT D
Mortgage Loan Schedule
[INTENTIONALLY OMITTED]
EXHIBIT E-1
STANDARD LAYOUT FOR MONTHLY REMITTANCE ADVICE
FIELD NAME DESCRIPTION FORMAT
---------- ----------- ------
INVNUM INVESTOR LOAN NUMBER Number no decimals
SERVNUM SERVICER LOAN NUMBER, REQUIRED Number no decimals
BEGSCHEDBAL BEGINNING SCHEDULED BALANCE FOR SCHED/SCHED Number two decimals
BEGINNING TRAIL BALANDE FOR ACTUAL/ACTUAL, REQUIRED
SCHEDPRIN SCHEDULED PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED Number two decimals
ACTUAL PRINCIPAL COLLECTED FOR ACTUAL/ACTUAL,
REQUIRED, .00 IF NO COLLECTIONS
CURT1 CURTAILMENT 1 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT1DATE CURTAILMENT 1 DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
CURT1ADJ CURTAILMENT 1 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
CURT2 CURTAILMENT 2 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT2DATE CURTAILMENT 2 DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
CURT2ADJ CURTAILMENT 2 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
LIQPRIN PAYOFF, LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
OTHPRIN OTHER PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
PRINREMIT TOTAL PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
INTREMIT NET INTEREST REMIT, INCLUDE PAYOFF INTEREST, Number two decimals
.00 IF NOT APPLICABLE
TOTREMIT TOTAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
ENDSCHEDBAL ENDING SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED Number two decimals
ENDING TRIAL BALANCE FOR ACTUAL/ACTUAL
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDACTBAL ENDING TRIAL BALANCE Number two decimals
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDDUEDATE ENDING ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT DD-MMM-YY
ACTCODE 60 IF PAIDOFF, BLANK IF NOT APPLICABLE Number no decimals
ACTDATE ACTUAL PAYOFF DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
INTRATE INTEREST RATE, REQUIRED Number seven decimals
E-1-1
Example .0700000 for 7.00%
SFRATE SERVICE FEE RATE, REQUIRED Number seven decimals
Example .0025000 for .25%
PTRATE PASS THRU RATE, REQUIRED Number seven decimals
Example .0675000 for 6.75%
PIPMT P&I CONSTANT, REQUIRED Number two decimals
.00 IF PAIDOFF
E-1-2
EXHIBIT E-2
STANDARD LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
1. Deal Identifier by Loan
2. SBO Loan Number
3. Loan Number
4. Investor Loan Number
5. Street Address
6. City
7. State
8. Zip Code
9. Original Loan Amount
10. Origination Date
11. First Payment Date
12. Current Loan Amount
13. Current Interest Rate
14. Current P&I Payment Amount
15. Scheduled Balance
16. Scheduled Due Date
17. Next Rate Adjustment Date
18. Next Payment Adjustment Date
19. Loan Term
20. Loan Type
21. Servicing Fee
22. Product Type
23. Property Type
24. Ownership Code
25. Actual Due Date
26. Delinquency Status
27. Reason for Default
28. FC Flag
29. Date Loan Reinstated
30. FC Suspended Date
31. Reason Suspended
32. FC Start Date (referral date)
33. Actual Notice of Intent Date
34. Actual First Legal Date
35. Date Bid Instructions Sent
36. Date F/C Sale Scheduled
37. Foreclosure Actual Sale Date
38. Actual Redemption End Date
39. Occupancy Status
40. Occupancy Status Date
41. Actual Eviction Start Date
42. Actual Eviction Complete Date
43. Loss Mit Workstation Status
44. Loss Mit Flag
45. Loss Mit Type
46. Loss Mit Start Date
47. Loss Mit Approval Date
E-2-1
48. Loss Mit Removal Date
49. REO Flag
50. Actual REO Start Date
51. REO List Date
52. REO List Price
53. Date REO Offer Received
54. Date REO Offer Accepted
55. REO Scheduled Close Date
56. REO Actual Closing Date
57. REO Net Sales proceeds
58. REO Sales Price
59. Paid Off Code
60. Paid in Full Date
61. MI Certificate Number
62. MI Cost
63. Other Advance Expenses
64. T&I Advances
65. Interest Advances
66. Liquidation Status
67. BK Atty Fees & Costs
68. FC Atty Fees & Costs
69. Eviction Atty Fees & Costs
70. Appraisal, BPO Costs
71. Property Preservation Fees
72. Actual Claim Filed Date
73. Actual Claim Amount Filed
74. Claim Amount Paid
75. Claim Funds Received Date
76. Realized Gain or Loss
77. BK Flag
78. Bankruptcy Chapter
79. Actual Bankruptcy Start Date
80. Actual Payment Plan Start Date
81. Actual Payment Plan End Date
82. Date POC Filed
83. Date Filed Relief/Dismissal
84. Relief/Dismissal Hearing Date
85. Date Relief/Dismissal Granted
86. Post Petition Due Date
87. Prepayment Flag
88. Prepayment Waived
89. Prepayment Premium Collected
90. Partial Prepayment Amount Collected
91. Prepayment Expiration Date
92. Origination Value Date
93. Origination Value Source
94. Original Value Amount
95. FC Valuation Amount
96. FC Valuation Source
97. FC Valuation Date
98. REO Value Source
E-2-2
99. REO Value (As-is)
100. REO Repaired Value
101. REO Value Date
102. Investor/Security Billing Date Sent
E-2-3
