EXHIBIT 99.5
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 XXXXX FARGO HOME MORTGAGE, INC.(the "Servicer") having an office at 0 Xxxx
Xxxxxx, Xxx Xxxxxx, Xxxx 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 1, 2000 and annexed as Exhibit B hereto, by and between CCGI, as owner,
and the Servicer, as servicer.
WHEREAS, pursuant to pursuant to five Assignments and Conveyances
from Centre Capital Group, Inc. dated June 14, 2000, July 26, 2000, October
23, 2000, January 23, 2001 and April 17, 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 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. 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.
5. Notices. All notices and communications between or among the
parties hereto (including any third party beneficiary thereof) or required to
be provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
All notices required to be delivered to the Master Servicer under
this Agreement shall be delivered to the Master Servicer at the following
address:
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: E. Xxxx Xxxxxxxxxx, Master Servicing, SASCO/ALS 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. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS THE STATE OF NEW YORK, NOTWITHSTANDING NEW YORK
OR OTHER CHOICE OF LAW RULES TO THE CONTRARY.
7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original, but all of which counterparts shall together constitute but one and
the same instrument.
8. Reconstitution. 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
XXXXX FARGO HOME MORTGAGE, INC.,
as Servicer
By: /s/ Xxxxxx Xxxx
-----------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
Acknowledged By:
AURORA LOAN SERVICES INC.,
as Master Servicer
By: /s/ E. Xxxx Xxxxxxxxxx
--------------------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Exec. 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 Custodial Agreement dated as of May
1, 2001 among the Custodian, the Trustee and SASCO, as depositor of
the Trust Fund.
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 Xxx or Xxxxxxx
Mac with any registered broker/dealer subject to Securities
Investors' Protection Corporation jurisdiction or any commercial
bank insured by the FDIC, if such broker/dealer or bank has an
uninsured, unsecured and unguaranteed obligation rated by each
Rating Agency in its highest short-term rating category;
(iv) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States
of America or any state thereof which have a credit rating from each
Rating Agency, at the time of investment or the contractual
commitment providing for such investment, at least equal to one of
the two highest long-term credit rating categories of each Rating
Agency; provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held as part of the
Trust Fund to exceed 20% of the sum of the aggregate principal
balance of the Mortgage Loans; provided, further, that such
securities will not be Eligible Investments if they are published as
being under review with negative implications from either Rating
Agency;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 180 days after the date
of issuance thereof) rated by each Rating Agency in its highest
short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of
the United States of America or its agencies or instrumentalities
(which obligations are backed by the full faith and credit of the
United States of America) held by a custodian in safekeeping on
behalf of the holders of such receipts; and
(viii) any other demand, money market, common trust fund or
time deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating
Agency or (B) that would not adversely affect the then current
rating by each Rating Agency of any of the Certificates. Such
investments in this subsection (viii) may include money market
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.
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 related
Determination Date and (ii) was not the subject of a previous
Monthly Advance, but only to the extent that such amount is
expected, in the reasonable judgment of the Servicer, to be
recoverable from collections or other recoveries in respect of such
Mortgage Loan. 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, which shall include a copy of any broker's price
opinion and any other information or reports obtained by the
Servicer which may support such determinations.
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.
The cost of any such Opinion of Counsel shall be an expense of the
Trust Fund unless Xxxxxx Capital decides, in its own discretion, to
bear such expense for the Trust Fund, in which case such cost will
be borne by Xxxxxx Capital.
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 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.
12. 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.
13. The parties hereto acknowledge that Section 2.02 (Books and Records) of
the Master Servicing Agreement shall be modified to indicate that the
Servicer 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.
14. The parties hereto acknowledge that Section 2.03 (Commencement of
Servicing Responsibilities) shall be inapplicable to this Agreement.
15. 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.
16. Section 3.01 (Servicer to Service) is hereby amended by adding the
following language after the second sentence of the second paragraph:
Notwithstanding anything to the contrary contained in this
Agreement, the Servicer shall not make or permit any modification,
waiver or amendment of any term of any Mortgage Loan that would
cause the REMIC or Trust Fund 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.
17. The parties hereto acknowledge that references to the "Owner" in the
second and third paragraphs of Section 3.02 shall refer to the Master
Servicer, except that the expense of any environmental inspection or
review at the request of the Master Servicer shall be an expense of the
Trust Fund.
18. The parties hereto acknowledge that the (i) reference to "Centre Capital
Group, Inc., owner of Fixed and Adjustable Rate Mortgage Loans" in the
fourth line of the first paragraph of Section 3.04 shall be to the "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 3.06 (Establishment of and Deposits to Escrow Account) is hereby
amended by changing the words "Xxxxx Fargo Home Mortgage, Inc. in trust
for Centre Capital Group, Inc." appearing in the fourth and fifth lines
of the first paragraph thereof to "Xxxxx Fargo Home Mortgage, Inc. in
trust for the SASCO 2001-8A Trust Fund."
20. Section 4.02 (Statements to Owner) is hereby amended by (i) replacing the
reference to "Remittance Date" in the first paragraph of such section
with "tenth calendar day of each month," (ii) replacing the reference to
"preceding Determination Date" in the first paragraph of such section
with "the last day of the preceding calendar month" and (iii) designating
the last paragraph of such section as paragraph (c) and by adding the
following paragraph (d) to such Section to read as follows:
(d) The Monthly Remittance Advice shall also include on a
current and cumulative basis the amount of any (i) claims filed,
(ii) claim payments made, (iii) claims denied and (iv) policies
cancelled with respect to those Serviced Mortgage Loans covered by
any PMI Policy or LPMI Policy.
21. Section 4.03 (Monthly Advances by Servicer) is hereby amended by changing
the word "Company" to "Servicer" and the word "Purchaser" to "Trust Fund"
in the second sentence of such section.
22. 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, but
in no event shall the Servicer be obligated to pay with respect to
any Prepayment Period any Prepayment Interest Shortfall in excess of
its Servicing Fee earned in respect of the related Due Period.
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.
23. 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 31 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 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. At the request of Xxxxxx Capital,
the Master Servicer shall deliver such documents to Xxxxxx Capital
within three (3) days of receipt thereof.
24. 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 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 or similar 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 or similar agreements 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. At the request of Xxxxxx Capital, the Master
Servicer shall deliver such certificate to Xxxxxx Capital within
three (3) days of receipt thereof.
25. 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.
26. 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.
27. Section 7.03 (Indemnification; Third Party Claims) is hereby amended in
its entirety to read as follows:
The Servicer shall indemnify the Trust Fund, the Trustee and
the Master Servicer and hold each of them harmless against any and
all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgements,
and any other costs, fees and expenses that any of such parties may
sustain in any way related to the failure of the Servicer to perform
its duties and service the Mortgage Loans in strict compliance with
the terms of this Agreement. The Servicer immediately shall notify
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
strict compliance with the terms of this Agreement.
The Trust Fund shall indemnify the Servicer and hold it
harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that the
Servicer may sustain in any way related to the failure of the
Trustee or the Master Servicer to perform its duties in compliance
with the terms of this Agreement.
In the event a dispute arises between an indemnified party and
the Servicer with respect to any of the rights and obligations of
the parties pursuant to this Agreement and such dispute is
adjudicated in a court of law, by an arbitration panel or any other
judicial process, then the losing party shall indemnify and
reimburse the winning party for all attorney's fees and other costs
and expenses related to the adjudication of said dispute.
28. Section 8.02 is hereby amended by changing the word "Owner" to "Trustee"
where it appears in the proviso to the third sentence thereof and the
word "Owner" to "Trust Fund" in the fifth sentence of such Section.
29. 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".
30. Section 9.01 is hereby amended by changing the references to "Owner" in
the third and fourth paragraph of such section to "Master Servicer."
31. 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 91 days
or more and not in foreclosure, bankruptcy, or actively
participating in a repayment plan (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. Notwithstanding, the prior
sentence, any Mortgage Loan referred to foreclosure as of a Notice
Date or in the month of the transfer shall be considered a
Delinquent Mortgage Loan. 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. The servicing for such Delinquent
Mortgage Loan or REO Property shall be transferred by the Servicer
to Xxxxxx Capital within a reasonable period of time after such
written notice of termination is given by Xxxxxx Capital, but in no
event more than 30 days of the receipt of such notice.
32. 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 five (5) Business Days of a
servicing transfer 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 hereunder, solely as a result of a termination for cause
of the Servicer 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.
33. 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.
34. 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
Assignment and Assumption Agreement
SCHEDULE I
Mortgage Loan Schedule
