EXHIBIT 99.3
EXECUTION
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of May, 2001, by and between XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC., a Delaware corporation ("Xxxxxx Capital"), and
BANK OF AMERICA, N.A., a national banking association (the "Servicer") having
an office at 0000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, 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 25,
2000 and annexed as Exhibit B hereto, by and between CCGI, as owner, and the
Servicer, as servicer.
WHEREAS, pursuant to pursuant to six Assignments and Conveyances from
Centre Capital Group, Inc. dated June 14, 2000, July 26, 2000, September 14,
2000, October 23, 2000, January 23, 2001 and February 22, 2001 relating to a
Master Mortgage Loan Purchase and Warranties Agreement, dated as of February
18, 2000 (the "Purchase Agreement") and annexed as Exhibit C hereto, Xxxxxx
Capital acquired 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
each of the Servicer and CCGI the obligations of CCGI as owner under such
Agreement.
WHEREAS, Xxxxxx Capital has conveyed certain of the Mortgage Loans, as
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 Bank One,
National Association (the "Trustee"), pursuant to a trust agreement dated as
of May 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"), Washington Mutual Mortgage Securities Corp., as an
additional master servicer, The Chase Manhattan Bank, as securities
administrator and SASCO.
WHEREAS, Xxxxxx Capital desires that the Servicer continue to service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
rights of Xxxxxx Capital (with the consent of the Master Servicer) to
terminate the rights and obligations of the Servicer hereunder at any time
without cause and subject to the other conditions set forth herein.
WHEREAS, Xxxxxx Capital 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.
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, Xxxxxx Capital 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, Xxxxxx Capital 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 2001-8A Trust Fund (the "Trust Fund") created pursuant
to the Trust Agreement, shall have the same rights as Xxxxxx Capital, 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 Article
IX of the Master Servicing Agreement. Notwithstanding anything herein to the
contrary, in no event shall the Master Servicer assume any of the obligations
of Xxxxxx Capital 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. Compliance with HOEPA. The Servicer is currently in compliance with
the Home Ownership and Equity Protection Act ("HOEPA") and will continue to
operate its business in compliance with HOEPA.
5. 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 in connection with the
transactions contemplated by the Trust Agreement and issuance of the
Certificates issued pursuant thereto.
6. 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 2001-8A
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:
The Chase Manhattan 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 2001-8A
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
Bank One, National Association
0 Xxxx Xxx Xxxxx
Xxxx Xxxxx 0X0 - 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Corporate Trust Services, SASCO/ALS 2001-8A
Telephone: 000-000-0000
Telecopier: 000-000-0000
All notices required to be delivered to Xxxxxx Capital hereunder
shall be delivered to Xxxxxx Capital at the following address:
Xxxxxx Capital, a Division of Xxxxxx
Brothers Holdings Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
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 the address of its office as set forth in the first paragraph of
this Agreement.
6. Reporting. Notwithstanding anything to the contrary in the Master
Servicing Agreement, any reports that are required to be provided on each
Remittance Date shall be provided by the fifth Business Day of each month and
shall relate to the period beginning on the first day of the previous calendar
month and ending on the last day of the previous calendar month.
7. 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.
8. 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.
9. Reconstitution. Xxxxxx Capital 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.
Executed as of the day and year first above written.
XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.,
as Owner
By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Authorized Signatory
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Servicer
By: /s/ Xxxx X. Xxxx
----------------------------------------
Name: Xxxx X. Xxxx
Title: Assistant Vice President
Acknowledged By:
AURORA LOAN SERVICES INC.,
as Master Servicer
By: /s/ E. Xxxx Xxxxxxxxxx
-------------------------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
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., any successor
in interest or any successor custodian appointed pursuant to the
Custodial Agreement.
4. 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 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 GNMA, Xxxxxx Mae 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
mutual funds or common trust funds, including any fund for which the
Trustee, the Master Servicer, the 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, the Servicer or an
affiliate thereof charges and collects fees and expenses from such
funds for services rendered, (y) the Trustee, the Master Servicer,
the 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.
5. The definition of "GNMA" is hereby added to Article I to immediately
follow the definition of "Xxxxxxx Mac":
"GNMA": The Government National Mortgage Association, or any
successor thereto.
6. 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 first day of the month in which
such Remittance Date occurs 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. To the extent
that the Servicer determines that any such amount is not
recoverable from collections or other recoveries in respect
of such Mortgage Loan, such determination shall be evidenced
by a certificate of a Servicing Officer delivered to the
Master Servicer setting forth such determination and the
procedures and considerations of the Servicer forming the
basis of such determination.
7. 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 Xxxxxx Capital
pursuant to the Assignment and Assumption 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.
8. 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 Xxxxxx Capital
pursuant to the Assignment and Assumption Agreement, which
Mortgage Loan Schedule is attached as Exhibit D to this
Agreement.
9. The definition of "Opinion of Counsel" in Article I is hereby amended by
adding the following proviso at the end of such definition:
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.
10. 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 fifth line thereof.
11. 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) Xxxxxx
Brothers Bank, F.S.B., a federal savings bank.
12. The definition of "Qualified GIC" is hereby added to Article I to
immediately follow the definition of "Qualified Depository", to read
as follows:
"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.
13. 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, and REO
Disposition Proceeds) of such Monthly Payment collected by
the Servicer or as otherwise provided under this Agreement.
14. The parties hereto acknowledge that Section 2.02 (Books and Records)
of the Master Servicing Agreement shall be modified to indicate that
the Custodian shall prepare and execute at the direction of Xxxxxx
Capital any note endorsements in connection with transfer of the
Mortgage Loans to the Trust Fund as the Owner of the Mortgage Loans
and that Xxxxxx Capital shall pay for any fees associated with the
preparation and execution of such note endorsements to the Trust
Fund.
15. The parties hereto acknowledge that Section 2.03 (Commencement of
Servicing Responsibilities) shall be inapplicable to this Agreement.
16. 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.
17. The parties hereto acknowledge that references to "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.
18. The parties hereto acknowledge that the (i) reference to "Centre
Capital Group, Inc., owner of Fixed and Adjustable Rate Mortgage
Loans" in the first sentence of Section 3.04 shall be changed to
"SASCO 2001-8A Trust Fund" and (ii) reference to "Cut-off Date" in
the second paragraph of Section 3.04 shall mean the "close of
business on May 1, 2001."
19. Section 3.01 (Servicer to Service) is hereby amended by adding the
following sentences after the second sentence of the second paragraph:
Notwithstanding anything to the contrary 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 the
REMIC or trust fund 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. 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.
20. Section 3.06 (Establishment of and Deposits to Escrow Account) is hereby
amended by changing the words "Bank of America, N.A. in trust for Centre
Capital Group, Inc., owner of Fixed and Adjustable Rate Mortgage Loans"
appearing in the fourth and fifth lines of the first paragraph thereof to
"Bank of America, N.A. in trust for the SASCO 2001-8A Trust Fund."
21. Section 4.02 (Statements to Owner) is hereby amended and restated by
substituting the following paragraph (a) to such Section to read as
follows:
(a) Not later than the Remittance Date, the Servicer shall
furnish to the Owner a monthly statement (a "Monthly Remittance
Advice") containing such information in the form of FNMA form 2010
or other such form as shall be required by FNMA Guides or by the
Owner in hard copy or electronic medium mutually acceptable to the
parties as to the accompanying remittance and the previous calendar
month.
22. Section 4.02 (Statements to Owner) is hereby amended by designating the
last paragraph of such section as paragraph (c).
23. 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.
24. Section 5.01 (Servicing Compensation) is hereby amended by adding the
following sentences at the end of such Section:
The aggregate of the Servicing Fees payable to the Servicer for
any month with respect to the Mortgage Loans shall be reduced by any
Prepayment Interest Shortfall Amount with respect to such month.
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, provided that aggregate Prepayment Interest
Shortfall Amounts for such month shall not exceed the aggregate
Servicing Fees of that month.
25. 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 July 31st of each year, beginning with July 31,
2002, Servicer shall, at its own expense, cause a firm of
independent 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.
26. A new Section 5.07 is added to the Master Servicing Agreement to read as
follows:
Section 5.07 Annual Officer's Certificate.
On or before July 31st of each year, beginning with July 31,
2002, the Servicer, at its own expense, will deliver to Xxxxxx
Capital 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.
27. 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.
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.
28. 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 Reconstitution
Dates) and Section 7.02 (Owner's Repurchase and Indemnification
Obligation) are inapplicable to this Agreement.
29. 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 or any of the directors, officers, employees or
agents of the Trustee or 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, that
this indemnity shall not protect the Trustee and the Master Servicer
or any of the directors, officers, employees or agents of the
Trustee or the Master Servicer against any loss, liability or
expense incurred by reason of willful malfeasance, bad faith or
negligence in the performance of duties hereunder or by reason of
reckless disregard of obligations and duties hereunder. The Servicer
immediately shall notify Xxxxxx Capital, 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 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 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 compliance with the terms of this
Agreement.
The Trust Fund shall indemnify the Servicer and hold it and any
of its directors, officers, employees or agents 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 incurred in connection with any legal action relating to
this Agreement or the Certificates, other than any loss, liability
or expense incurred by reason of its willful malfeasance, bad faith
or negligence in performance of its duties hereunder or reason of
reckless disregard of its obligation and duties hereunder.
30. Section 8.02 is hereby amended by changing the word "Owner" to "Owner,
Trustee and Master Servicer" in the first sentence thereof; 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.
31. 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, at the direction, or with the prior
approval of, the Trustee".
32. Section 9.01 is hereby amended by changing the references to "Owner" in
the third and fourth paragraph of such section to "Master Servicer."
33. 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 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, Xxxxxx
Capital and the Master Servicer in writing or (iii) at the sole
option of the Xxxxxx Capital, 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 Xxxxxx
Capital terminates this Agreement without cause in accordance with
subclause (iii) above, Xxxxxx Capital 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, Xxxxxx Capital 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, Xxxxxx Capital 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,
Xxxxxx Capital 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 Xxxxxx Capital's designee.
34. 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
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, Xxxxxx Capital, 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 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 10.01
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 ten (10) Business Days to the
successor Servicer the funds in the Custodial Account and Escrow
Account and 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 as a consequence of termination or removal of the Servicer
for cause pursuant to Section 9.01 of the Master Servicing
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.
35. 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.
36. 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.
EXHIBIT B
Master Servicing Agreement
EXHIBIT C
Purchase Agreement
SCHEDULE I
Mortgage Loan Schedule
