EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into as
of the 1st day of February, 2002, by and between XXXXXX BROTHERS BANK, FSB, a
federal savings bank (the "Seller" or "Xxxxxx Brothers Bank, FSB"), and GMAC
MORTGAGE CORPORATION, a Pennsylvania corporation (the "Servicer" or the
"Company"), having an office at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000,
recites and provides as follows:
RECITALS
WHEREAS, the Seller acquired certain conventional, residential, fixed and
adjustable rate, first lien mortgage loans from the Servicer, which such
mortgage loans were either originated or acquired by the Servicer pursuant to
the Flow Sale and Servicing, dated as of October 1, 2001 (the "Flow Agreement"),
and annexed as Exhibit B hereto.
WHEREAS, the Seller has conveyed certain mortgage loans as identified on
Exhibit C hereto (the "Mortgage Loans") to Structured Asset Securities
Corporation, a Delaware special purpose corporation ("SASCO"), which in turn has
conveyed the Mortgage Loans to JPMorgan Chase Bank, as trustee (the "Trustee"),
pursuant to a trust agreement dated as of February 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 Mortgage Loans are currently being serviced by the Servicer
for the Seller pursuant to the Flow Agreement.
WHEREAS, the Seller desires that the Servicer continue to service the
Mortgage Loans, and the Servicer has agreed to do so, subject to the rights of
the Seller (with the consent of the Master Servicer) to terminate the rights and
obligations of the Servicer hereunder as permitted under Section 10.02 herein
and subject to the other conditions set forth herein.
WHEREAS, the Seller and the Servicer agree that the provisions of the Flow
Agreement shall continue to apply to the Mortgage Loans, but only to the extent
provided herein and that this Agreement shall govern the Mortgage Loans for so
long as such Mortgage Loans remain subject to the provisions of the Trust
Agreement and until the Transfer Date.
WHEREAS, the Seller and the Servicer agree that if a successor servicer is
appointed pursuant to the terms of this Agreement, the Servicer shall no longer
service the Mortgage Loans and shall transfer servicing of the Mortgage Loans to
the successor servicer designated by the Seller herein.
WHEREAS, the Master Servicer and any successor master servicer shall be
obligated, among other things, to supervise the servicing of the Mortgage Loans
on behalf of the Trustee, and shall have the right under the conditions
specified herein to terminate for cause the rights and obligations of the
Servicer under this Agreement.
WHEREAS, the Seller and the Servicer intend that each of the Master
Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Seller and the Servicer hereby agree as
follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this Agreement,
including Exhibit A hereto and any provisions of the Flow Agreement incorporated
by reference herein (regardless of whether such terms are defined in the Flow
Agreement), shall have the meanings ascribed to such terms in the Trust
Agreement.
2. Custodianship. The parties hereto acknowledge that Xxxxx Fargo Bank
Minnesota, NA will act as custodian of the Mortgage Files for the Trustee
pursuant to a Custodial Agreement, dated February 1, 2002, between Xxxxx Fargo
Bank Minnesota, NA and the Trustee.
3. Servicing. The Servicer agrees, with respect to the Mortgage Loans, to
perform and observe the duties, responsibilities and obligations that are to be
performed and observed under the provisions of the Flow Agreement, except as
otherwise provided herein and on Exhibit A hereto, and that the provisions of
the Flow Agreement, as so modified, are and shall be a part of this Agreement to
the same extent as if set forth herein in full.
4. 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 Mortgage Loans in accordance with the provisions of this Agreement.
The Master Servicer, acting on behalf of the Trustee and the SASCO 2002-4H Trust
Fund (the "Trust Fund") created pursuant to the Trust Agreement, shall have the
same rights as the Seller under the Flow Agreement to enforce the obligations of
the Servicer under the Flow Agreement and the term "Initial Owner" or "Owner" as
used in the Flow Agreement in connection with any rights of the Initial Owner or
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 Flow Agreement. Notwithstanding anything herein to the contrary, in no
event shall the Master Servicer assume any of the obligations of the Seller
under the Flow 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.
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 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 2002-4H
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled basis to the following wire
account:
JPMorgan Chase Bank
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc., Master Servicing Payment
Clearing Account
Account No.: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO 2002-4H
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Services Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to the Seller hereunder shall be
delivered to the Seller at the following address:
Xxxxxx Brothers Bank, FSB
3 World Financial Centre, 8th Floor
New York, New York 10038
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Xxxxxx, Xxxxx & Bockius, LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All notices required to be delivered to the Servicer hereunder shall be
delivered to the Servicer at the following address:
GMAC Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Email: xxxx_xxxxxxxx@xxxxx.xxx
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.
Executed as of the day and year first above written.
XXXXXX BROTHERS BANK, FSB,
as Seller
By:
-----------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
GMAC MORTGAGE CORPORATION,
as Servicer
By:
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
ACKNOWLEDGED BY:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:
-----------------------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
JPMORGAN CHASE BANK,
as Trustee
By:
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to the Flow Agreement
1. Unless otherwise specified herein, any provisions of the Flow Agreement,
including definitions, relating to Whole-Loan Transfers, Pass-Through
Transfers, 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 Flow 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, NA
4. The definition of "Determination Date" in Article I is hereby amended
in its entirety to read as follows:
"Determination Date" means the 15th day (or if such 15th day is not
a Business Day, the Business Day immediately preceding such 15th
day) of the month of the related Remittance Date.
5. 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.
6. The definition of "Eligible Depository Institution" in Article I is
hereby amended in its entirety to read as follows:
"Eligible Depository Institution": 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
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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.
7. 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 Xxxxxx Mae, 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
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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 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.
8. A definition of "Xxxxxx Xxx" is hereby added to Article I to immediately
follow the definition of "GMAC" and to read as follows:
"Xxxxxx Mae": The Government National Mortgage Association, or
any successor thereto.
9. The definition of "Mortgage Loan" in Article is hereby amended in its
entirety to read as follows:
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"Mortgage Loan": An individual Mortgage Loan which has been
purchased from the Company by Xxxxxx Brothers Bank, FSB 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.
10. 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 attached as
Exhibit C to this Agreement setting forth certain information with
respect to the Mortgage Loans purchased from the Company by Xxxxxx
Brothers Bank, FSB pursuant to the Flow Agreement.
11. The definition of "P&I Advance" in Article I is hereby amended in its
entirety to read as follows:
"P&I Advance": 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 on the Due
Date in the related Due Period, and that (i) was delinquent at the
close of business on the related Determination Date and (ii) was not
the subject of a previous P&I Advance, but only to the extent that
such amount is expected, in the reasonable judgment of the Company,
to be recoverable from collections or other recoveries in respect of
such Mortgage Loan. To the extent that the Company 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 Company forming the basis of
such determination, which shall include a copy of any broker's price
opinion and any other information or reports obtained by the Company
which may support such determinations.
12. The definition of "Prepayment Interest Shortfall" in Article I is
hereby amended in its entirety to read as follows:
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a Principal Prepayment in full or in part during
any Due Period, which Principal Prepayment was applied to such
Mortgage Loan prior to such Mortgage Loan's Due Date in such Due
Period, the amount of interest (net the related Servicing Fee for
Principal Prepayments in full) that would have accrued on the amount
of such Principal Prepayment during the period commencing on the
date
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as of which such Principal Prepayment was applied to such Mortgage
Loan and ending on the day immediately preceding such Due Date,
inclusive.
13. A definition of "Qualified GIC" in Article I is hereby added to
immediately follow the definition of "Qualified Appraiser" and 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 Company 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 Company, the
Company 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 Company's interest therein shall be
transferable to any successor Company 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 and
restated in its entirety to read as follows:
Servicing Fee: An amount equal to one-twelfth the product of (a)
0.25% per annum (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 Company or as otherwise provided under this
Agreement.
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15. The parties hereto acknowledge that Section 2.03 (Custodial Agreement;
Delivery of Mortgage Loan Documents) shall be inapplicable to this
Agreement, as superseded by the provisions of the Custodial Agreement and
the Trust Agreement.
16. Section 4.01 (Company to Act as Servicer) is hereby amended and
restated in its entirety to read as follows:
From the date of origination of the related Mortgage Loans to
the related Closing Date, the Company shall have serviced the
related Mortgage Loans in accordance with Customary Servicing
Procedures. From and after the related Closing Date, the Company, as
an independent contractor, shall service and administer the Mortgage
Loans pursuant to this Agreement and shall have full power and
authority, acting alone, to do any and all things in connection with
such servicing and administration which the Company may deem
necessary or desirable, consistent with the terms of this Agreement
and with Accepted Servicing Practices.
Consistent with the terms of this Agreement, the Company may
waive, modify or vary any term of any Mortgage Loan or consent to
the postponement of strict compliance with any such term or in any
manner grant indulgence to any Mortgagor if in the Company's
reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Owner,
provided, however, that (unless the Mortgagor is in default with
respect to the Mortgage Loan or such default is, in the judgment of
the Company, imminent and the Company has obtained the prior written
consent of the Owner) the Company shall not permit any modification
with respect to any Mortgage Loan that would change the Mortgage
Interest Rate, defer or forgive the payment of principal or
interest, reduce or increase the outstanding principal balance
(except for actual payments of principal) or change the final
maturity date on such Mortgage Loan. With respect to a
Reconstitution Agreement, in the event of any such modification
which permits the deferral of interest or principal payments on any
Mortgage Loan, the Company shall, on the Business Day immediately
preceding the Remittance Date in any month in which any such
principal or interest payment has been deferred, deposit in the
Custodial Account from its own funds, in accordance with Section
4.04, the difference between (a) such month's principal and one
month's interest at the Mortgage Loan Remittance Rate on the unpaid
principal balance of such Mortgage Loan and (b) the amount paid by
the Mortgagor. With the approval of the Master Servicer, the Company
shall be entitled to reimbursement for such advances only to the
same extent as for P&I Advances made pursuant to Section 5.03
hereunder. Without limiting the generality of the foregoing, the
Company shall continue, and is hereby authorized and empowered, to
execute and deliver on behalf of itself and the Owner, all
instruments of satisfaction or cancellation, or of partial or full
release, discharge and all other comparable instruments, with
respect to the Mortgage Loans and with respect to the Mortgaged
Properties. If reasonably required by the Company, the Owner shall
furnish the Company with any powers of attorney and other
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documents necessary or appropriate to enable the Company to carry
out its servicing and administrative duties under this Agreement.
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage loan, the Company shall
forward to the Master Servicer copies of any documents evidencing
such assumption, modification, consolidation or extension.
Notwithstanding anything to the contrary contained in this
Agreement, the Company shall not make or permit any modification,
waiver or amendment of any term of any Mortgage Loan that would
cause any REMIC created under the Trust Agreement to fail to qualify
as a REMIC or result in the imposition of any tax under Section
860F(a) or Section 860G(d) of the Code.
In servicing and administering the Mortgage Loans, the Company
shall employ procedures (including collection procedures) and
exercise the same care that it customarily employs and exercises in
servicing and administering mortgage loans for its own account,
giving due consideration to Customary Servicing Procedures where
such practices do not conflict with the requirements of this
Agreement, and the Owner's reliance on the Company.
Absent written consultation and approval by the Owner, as
specified in this Section 4.01, the Company may take actions
relative to the servicing and administration of the Mortgage Loans
that are consistent with Customary Servicing Procedures.
17. The parties hereto acknowledge that references to the "Owner" in the first
paragraph of Section 4.02 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 (i) the Custodial Account referenced
in Section 4.04 shall be titled "GMAC Mortgage Corporation in trust for
SASCO 2002-4H" and (ii) references to the Cutoff Date shall mean the close
of business on February 1, 2002.
19. The parties hereto acknowledge that (i) the Escrow Account referenced in
Section 4.06 shall be titled "GMAC Mortgage Corporation in trust for SASCO
2002-4H."
20. Section 4.14 (Title, Management and Disposition of REO Property) is hereby
amended by (i) adding two new paragraphs after the second paragraph
thereof to read as follows:
In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage Loan, the
Company shall dispose of such REO Property not later than the end of the
third taxable year after the year of its acquisition by the Trust Fund
unless the Company has applied for and received a grant of extension from
the Internal Revenue Service to the effect that, under the REMIC
Provisions and any relevant proposed legislation and under applicable
state law, the applicable Trust REMIC may hold REO Property for a longer
period without adversely
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affecting the REMIC status of such REMIC or causing the imposition of a
federal or state tax upon such REMIC. If the Company has received such an
extension, then the Company shall continue to attempt to sell the REO
Property for its fair market value for such period longer than three years
as such extension permits (the "Extended Period"). If the Company has not
received such an extension and the Company is unable to sell the REO
Property within the period ending 3 months before the end of such third
taxable year after its acquisition by the Trust Fund or if the Company has
received such an extension, and the Company is unable to sell the REO
Property within the period ending three months before the close of the
Extended Period, the Company shall, before the end of the three year
period or the Extended Period, as applicable, (i) purchase such REO
Property at a price equal to the REO Property's fair market value or (ii)
auction the REO Property to the highest bidder (which may be the Company)
in an auction reasonably designed to produce a fair price prior to the
expiration of the three-year period or the Extended Period, as the case
may be. The Trustee shall sign any document or take any other action
reasonably requested by the Company which would enable the Company, on
behalf of the Trust Fund, to request such grant of extension.
Notwithstanding any other provisions of this Agreement, no REO
Property acquired by the Trust Fund shall be rented (or allowed to
continue to be rented) or otherwise used by or on behalf of the Trust Fund
in such a manner or pursuant to any terms that would: (i) cause such REO
Property to fail to qualify as "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code; or (ii) subject any Trust REMIC to the
imposition of any federal income taxes on the income earned from such REO
Property, including any taxes imposed by reason of Sections 860F or
860G(c) of the Code, unless the Company has agreed to indemnify and hold
harmless the Trust Fund with respect to the imposition of any such taxes.
(ii) adding the following to the end of such Section:
Prior to acceptance by the Company of an offer to sell any REO
Property, the Company 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 Company 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 Company shall not proceed with such sale.
21. Section 5.02 (Statements to the Owner) is hereby amended and
restated in its entirety as follows:
Not later than the tenth calendar day of each month, the Company
shall furnish to the Master Servicer (a) a monthly remittance and
reporting format in the format currently being used and agreed upon by the
Company and by the Master Servicer as to the accompanying remittance and
the period ending on the last day of the preceding Determination Date and
(b) all such information required pursuant to clause (a) above on a
magnetic tape or other similar media reasonably acceptable to the Master
Servicer.
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Beginning with calendar year 2002, the Company 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 Company 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
Company 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.
22. Section 5.03 (P&I Advances by the Company) is hereby amended and
restated in its entirety as follows:
On the Business Day immediately preceding each Remittance Date, the
Company shall deposit in the Custodial Account from its own funds an
amount equal to all Monthly Payments (with interest adjusted to the
Mortgage Loan Remittance Rate) which were due on the Mortgage Loans during
the applicable Due Period and which were delinquent at the close of
business on the immediately preceding Determination Date or which were
deferred pursuant to Section 4.01. Any amounts held for future
distribution and so used to make P&I Advances shall be replaced by the
Company 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. The Company's obligation to make such P&I Advances as to
any Mortgage Loan will continue through the last Monthly Payment due prior
to the payment in full of the Mortgage Loan, or through the last
Remittance Date prior to the Remittance Date for the distribution of all
Liquidation Proceeds and other payments or recoveries (including Insurance
Proceeds and Condemnation Proceeds) with respect to the Mortgage Loan
unless the Company deems such P&I Advances to be unrecoverable, as
evidenced by an Officer's Certificate of the Company delivered to the
Master Servicer.
23. Section 6.03 (Servicing Compensation) is hereby amended by adding the
following sentence at the end of such Section:
The Company 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.
24. Section 6.04 (Annual Statement as to Compliance) is hereby amended by
replacing "Owner" with "Xxxxxx Brothers Bank, FSB and Master Servicer".
25. Section 6.05 (Annual Independent Public Accountants' Servicing Report) is
hereby amended by replacing "Owner" with "Xxxxxx Brothers Bank, FSB and
Master Servicer".
26. Sections 8.01 (Indemnification; Third Party Claims) is hereby amended
in its entirety to read as follows:
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The Company 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, judgements,
and any other costs, fees and expenses that any of such parties may
sustain directly resulting from the failure of the Company to
perform its duties and service the Mortgage Loans in strict
compliance with the terms of this Agreement. The Company immediately
shall notify Xxxxxx Brothers Bank, FSB, 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 Company 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 Company for all amounts
advanced by it pursuant to the preceding sentence except when the
claim is in any way relates to the failure of the Company to service
and administer the Mortgage Loans in strict compliance with the
terms of this Agreement.
The Trust Fund shall indemnify the Company and hold it
harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that the
Company 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 Company 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.
27. Section 9.01 (Events of Default) is hereby amended as follows:
(a) Amending Subsection 9.01(vii) in its entirety to read as follows: "the
Company at any time is neither a Xxxxxx Mae or Xxxxxxx Mac approved
servicer, and the Master Servicer has not terminated the rights and
obligations of the Company under this Agreement and replaced the Company
with a Xxxxxx Mae or Xxxxxxx Mac approved servicer within 30 days of the
absence of such approval."
(b) Replacing the last paragraph thereof with the following:
Upon receipt by the Company of such written notice, all
authority and power of the Company under this Agreement, whether
with respect to the Mortgage Loans or otherwise, shall pass to and
be vested in a successor Company
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appointed by the Xxxxxx Brothers Bank, FSB and the Master Servicer.
Upon written request from the Seller, the Company shall prepare,
execute and deliver to the successor entity designated by the Seller
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, including but not limited to
the transfer and endorsement or assignment of the Mortgage Loans and
related documents, at the Company's sole expense. The Company shall
cooperate with Xxxxxx Brothers Bank, FSB and the Master Servicer and
such successor in effecting the termination of the Company's
responsibilities and rights hereunder, 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 Company to the
Custodial Account or Escrow Account or thereafter received with
respect to the Mortgage Loans.
28. The parties hereto acknowledge that the word "Owner" in Section 9.02
(Waiver of Defaults) shall refer to the "Master Servicer with the prior
consent of the Trustee."
29. 10.02 (Termination Without Cause) is hereby amended by replacing the
first paragraph thereof with the following paragraphs:
Section 10.02 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 Trust Fund (or advances by the Company 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 Company, Xxxxxx
Brothers Bank, FSB and the Master Servicer in writing or (iii) at
the sole option of the Xxxxxx Brothers Bank, FSB, without cause,
upon 30 days written notice. Any such notice of termination shall be
in writing and delivered to the Company by registered mail to the
address set forth at the beginning of this Agreement. The Master
Servicer, the Trustee and the Company shall comply with the
termination procedures set forth in Article X.
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In connection with any such termination referred to in clause
(ii) above, Xxxxxx Brothers Bank, FSB will be responsible for
reimbursing the Company 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.
In connection with any such termination referred to in clause
(iii) above, Xxxxxx Brothers Bank, FSB will be responsible for
paying a sum, as liquidated damages, in an amount equal to (I) two
percent (2%) of the aggregate Assumed Principal Balance of the
Mortgage Loans (as defined herein) if such written notice is
received by the Company on or before the Business Day five years
from the date such Mortgage Loans were sold by the Company to Xxxxxx
Brothers Bank, FSB, or (II) one percent (1%) of the aggregate
Assumed Principal Balance of the Mortgage Loans if such written
notice is received by the Company after the Business Day five years
from the date such Mortgage Loans were sold by the Company to Xxxxxx
Brothers Bank, FSB (either amount shall be referred to as
"Liquidated Damages").
30. Section 11.01 (Successor to the Servicer) is hereby amended in its
entirety to read as follows:
Simultaneously with the termination of the Company's
responsibilities and duties under this Agreement pursuant to
Sections 8.03, 9.01 or 10.01(a)(ii), the Master Servicer shall, in
accordance with the provisions of the Trust Agreement (i) succeed to
and assume all of the Company's responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor
meeting the eligibility requirements of this Agreement and (iii) and
which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Company under this
Agreement with the termination of the Company's responsibilities,
duties and liabilities under this Agreement. Any successor to the
Company that is not at that time a Servicer of other mortgage loans
for the Trust Fund shall be subject to the approval of the Master
Servicer, Xxxxxx Brothers Bank, FSB, the Trustee and each Rating
Agency (as such term is defined in the Trust Agreement). Unless the
successor servicer is at that time a servicer of other mortgage
loans for the Trust Fund, each Rating Agency must deliver to the
Trustee a letter to the effect that such transfer of servicing will
not result in a qualification, withdrawal or downgrade of the
then-current rating of any of the Certificates. In connection with
such appointment and assumption, the Master Servicer or Xxxxxx
Brothers Bank, 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 Company
under this Agreement. In the event that the Company's duties,
responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned sections, the Company
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
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action whatsoever that might impair or prejudice the rights or
financial condition of its successor. The resignation or removal of
the Company pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this
Section 11.01 and shall in no event relieve the Company of the
representations and warranties made pursuant to Article X shall be
applicable to the Company notwithstanding any such resignation or
termination of the Company, 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 Company
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 Company shall cooperate with the
Trustee and the Master Servicer, as applicable, and such successor
in effecting the termination of the Company'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 Company 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 Company and the Master
Servicer an instrument (i) accepting such appointment, wherein the
successor shall make an assumption of the due and punctual
performance and observance of each covenant and condition to be
performed and observed by the Company under this Agreement,
whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and
liabilities of the Company, with like effect as if originally named
as a party to this Agreement. Any termination or resignation of the
Company or termination of this Agreement pursuant to Sections 10.01
or 10.02 shall not affect any claims that the Master Servicer or the
Trustee may have against the Company arising out of the Company's
actions or failure to act prior to any such termination or
resignation.
Within three (3) Business Days of the appointment of a
successor servicer, the Company shall deliver 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 Company 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 Company.
Upon a successor's acceptance of appointment as such, the
Company shall notify the Trustee and Master Servicer of such
appointment in accordance with the notice procedures set forth
herein.
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Except as otherwise provided in this Agreement, all reasonable
costs and expenses incurred in connection with any transfer of
servicing hereunder (whether as a result of termination or removal
of the Company or resignation of the Company or otherwise),
including, without limitation, the costs and expenses of the Master
Servicer or any other Person in appointing a successor servicer, or
of the Master Servicer in assuming the responsibilities of the
Company 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 Company from its own funds without
reimbursement.
31. A new Section 11.14 is hereby added to read as follows:
Section 11.14 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 Company
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 Company 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.
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EXHIBIT B
Flow Agreement
[See Item #99.17]
B-1
EXHIBIT C
Mortgage Loan Schedule
[Intentionally Omitted]
