===============================================================================
AURORA LOAN SERVICES INC.,
as Servicer
XXXXXX CAPITAL, A DIVISION OF XXXXXX BROTHERS HOLDINGS INC.,
as a Seller
and
XXXXXX BROTHERS BANK, F.S.B,
as a Seller
-----------------------------
Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2002-AL1
SERVICING AGREEMENT
Dated as of February 1, 2002
-----------------------------
===============================================================================
Table of Contents
Page
----
ARTICLE I. DEFINITIONS............................................................................................2
ARTICLE II. SELLER'S ENGAGEMENT OF SERVICER TO PERFORM SERVICING RESPONSIBILITIES................................13
Section 2.01 Contract for Servicing; Possession of Servicing Files......................................13
Section 2.02 Books and Records..........................................................................14
ARTICLE III. SERVICING OF THE MORTGAGE LOANS.....................................................................15
Section 3.01 Servicer to Service........................................................................15
Section 3.02 Collection of Assistance Loan Payments.....................................................17
Section 3.03 Establishment of and Deposits to Custodial Account.........................................17
Section 3.04 Permitted Withdrawals from Custodial Account...............................................18
Section 3.05 Establishment of and Deposits to Escrow Account............................................20
Section 3.06 Permitted Withdrawals From Escrow Account..................................................21
Section 3.07 [Reserved].................................................................................21
Section 3.08 Fidelity Bond and Errors and Omissions Insurance...........................................21
Section 3.09 Completion and Recordation of Assignments..................................................22
Section 3.10 Protection of Accounts.....................................................................22
Section 3.11 Payment of Taxes, Insurance and Other Charges..............................................22
Section 3.12 Maintenance of Hazard Insurance............................................................23
Section 3.13 Maintenance of Mortgage Blanket Insurance..................................................23
Section 3.14 Restoration of Collateral..................................................................24
Section 3.15 Title, Management and Disposition of REO Property..........................................24
Section 3.16 Real Estate Owned Reports..................................................................27
Section 3.17 MERS.......................................................................................27
Section 3.18 Certain Matters Relating to Assistance Loans...............................................27
ARTICLE IV. PAYMENTS TO TRUSTEE..................................................................................28
Section 4.01 Remittances................................................................................28
Section 4.02 Statements to Trustee and Each Seller......................................................29
Section 4.03 Statement from the Trustee.................................................................29
Section 4.04 Monthly Advances by Servicer...............................................................30
ARTICLE V. GENERAL SERVICING PROCEDURES..........................................................................30
Section 5.01 Servicing Compensation.....................................................................30
Section 5.02 Annual Audit Report........................................................................31
Section 5.03 Annual Officer's Certificate...............................................................31
Section 5.04 Transfers of Mortgaged Property............................................................31
ARTICLE VI. REPRESENTATIONS, WARRANTIES AND AGREEMENTS...........................................................32
Section 6.01 Representations, Warranties and Agreements of the Servicer.................................32
Section 6.02 Remedies for Breach of Representations and Warranties of the Servicer......................34
Section 6.03 Additional Indemnification by the Servicer; Third Party Claims.............................35
ARTICLE VII. THE SERVICER........................................................................................36
Section 7.01 Merger or Consolidation of the Servicer....................................................36
Section 7.02 Limitation on Liability of the Servicer and Others.........................................36
Section 7.03 Limitation on Resignation and Assignment by the Servicer...................................36
Section 7.04 Subservicing Agreements and Successor Subservicer..........................................37
ARTICLE VIII. TERMINATION........................................................................................38
Section 8.01 Termination for Cause......................................................................38
Section 8.02 Termination Without Cause..................................................................40
ARTICLE IX. MISCELLANEOUS PROVISIONS.............................................................................40
Section 9.01 Successor to the Servicer..................................................................40
Section 9.02 Purchase of the Assistance Loans...........................................................42
Section 9.03 Costs......................................................................................43
Section 9.04 Notices....................................................................................43
Section 9.05 Severability Clause........................................................................45
Section 9.06 No Personal Solicitation...................................................................45
Section 9.07 Counterparts...............................................................................46
Section 9.08 Place of Delivery and Governing Law........................................................46
Section 9.09 Further Agreements.........................................................................46
Section 9.10 Intention of the Parties...................................................................46
Section 9.11 Successors and Assigns; Assignment of Servicing Agreement..................................46
Section 9.12 Assignment by the Sellers..................................................................46
Section 9.13 Waivers....................................................................................47
Section 9.14 Exhibits...................................................................................47
Section 9.15 General Interpretive Principles............................................................47
Section 9.16 Reproduction of Documents..................................................................48
EXHIBITS & SCHEDULES
EXHIBIT A Assistance Loan Schedule
EXHIBIT B Custodial Account Letter Agreement
EXHIBIT C Escrow Account Letter Agreement
2
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement"), entered into as of the 1st
day of February, 2002, by and between XXXXXX CAPITAL, A DIVISION OF XXXXXX
BROTHERS HOLDINGS INC., a Delaware corporation (the "Seller" or "Xxxxxx
Capital"), XXXXXX BROTHERS BANK, FSB, a federal savings bank (the "Seller" or
the "Bank") and AURORA LOAN SERVICES INC., a Delaware corporation ("the
Servicer"), recites and provides as follows:
RECITALS
WHEREAS, the United States Small Business Administration (the "SBA")
and Xxxxxx Capital are parties to a Loan Sale Agreement (SBA Loan Sale # 3 ),
pursuant to which the SBA sold, transferred, assigned, set over, deposited with
and otherwise conveyed the loans listed on Exhibit A hereto (the "Assistance
Loans");
WHEREAS, the SBA and the Bank are parties to a Loan Sale Agreement (SBA
Loan Sale # 4 ), pursuant to which the SBA sold, transferred, assigned, set
over, deposited with and otherwise conveyed the Assistance Loans;
WHEREAS, each Seller (with respect to its related Assistance Loans) has
conveyed such Assistance Loans on a servicing-retained basis to Structured Asset
Securities Corporation (the "Depositor"), which in turn has conveyed the
Assistance Loans to Xxxxx Fargo Bank Minnesota, National Association, as trustee
(the "Trustee") under a trust agreement dated as of February 1, 2002 (the "Trust
Agreement"), between the Trustee and the Depositor;
WHEREAS, each Seller (with respect to its related Assistance Loans)
desires that the Servicer service the Assistance Loans pursuant to this
Agreement, and the Servicer has agreed to do so, subject to the right of each
Seller (with respect to its related Assistance Loans) to terminate the rights
and obligations of the Servicer hereunder at any time and to the other
conditions set forth herein; and
WHEREAS, the Servicer is authorized to service loans not designated as
simple interest loans as fully amortizing.
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, the Bank and the
Servicer hereby agree as follows:
ARTICLE I.
DEFINITIONS
The following terms are defined as follows (except as otherwise agreed
in writing by the parties):
Accepted Servicing Practices: With respect to any Assistance Loan,
those servicing practices of prudent lending institutions that service loans of
the same type as such Assistance Loan in the jurisdiction where the related
Collateral, if any, is located.
Act: The National Housing Act, as amended from time to time.
Aggregate Loan Balance: At any date of determination, the outstanding
unpaid principal balance of the Assistance Loans serviced hereunder.
Agreement: This Servicing Agreement and all amendments hereof and
supplements hereto.
Ancillary Income: All income derived from the Assistance Loans, other
than Servicing Fees, including but not limited to late charges, fees received
with respect to checks or bank drafts returned by the related bank for
non-sufficient funds, assumption fees, optional insurance administrative fees
and all other incidental fees and charges.
Assignment: With respect to each secured Assistance Loan, an assignment
of the Security Agreement, notice of transfer or equivalent instrument
sufficient under the laws of the jurisdiction wherein the related Collateral is
located to reflect the transfer of the Security Agreement. With respect to each
Mortgage Loan, an assignment of the Mortgage, notice of transfer or equivalent
instrument in recordable form, sufficient under the laws of the jurisdiction
wherein the related Mortgaged Property is located to reflect the transfer of the
Mortgage to the party indicated therein, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments
covering the Mortgage Loans secured by Mortgaged Properties located in the same
jurisdiction, if permitted by law.
Assistance Loan: An individual secured or unsecured loan originated by
the SBA (including Mortgage Loans and loans secured by special assessments and
other non-real estate Collateral) that is the subject of this Agreement, each
such Assistance Loan being identified on the Assistance Loan Schedule, which
Assistance Loan includes without limitation the Assistance Loan File, the
Monthly Payments, Principal Prepayments, Liquidation Proceeds, Insurance
Proceeds, and all other rights, benefits, proceeds and obligations arising from
or in connection with such Assistance Loan and similar loans securing the
Certificates issued by the Trustee with respect to which servicing is
subsequently transferred to the Servicer from time to time for inclusion under
the terms of this Agreement.
Assistance Loan File: With respect to Assistance Loans other than
Mortgage Loans, (i) the original Promissory Note, (ii) with respect to each
secured Assistance Loan, the original Security Agreement, together with an
assignment of the Security Agreement in favor of the Trustee, together with
originals or copies of all intervening assignments showing a complete chain of
assignment, (iii) the original or a copy of any guaranty, if applicable, (iv)
the original or a copy of each assumption, modification, written assurance or
substitution agreement, if any and (v) the original or a copy of the Loan
Authorization and Agreement, in each case to the extent made available by the
SBA.
2
Assistance Loan Schedule: A schedule of the Assistance Loans (including
Mortgage Loans) attached hereto as Exhibit A, which may be amended from time to
time to include additional loans which are transferred to the Servicer by a
Prior Servicer in a Servicing Transfer, setting forth the following information
as of the Cut-off Date (unless indicated otherwise), to the extent available,
with respect to each Assistance Loan:
(i) the SBA identifying number;
(ii) the Obligor's name;
(iii) the description of the Collateral;
(iv) the original term to maturity from origination (or, if
such Assistance Loan has been modified, from modification);
(v) the stated remaining months to maturity from the Cut-off
Date based on the amortization schedule;
(vi) the Loan Rate;
(vii) the date on which the first Monthly Payment was due on
the Assistance Loan;
(viii) the Due Date currently in effect;
(ix) the stated maturity date;
(x) the amount of the Monthly Payment due on the first Due
Date on or after the Cut-off Date;
(xi) the last Due Date on which a Monthly Payment was actually
applied to the unpaid principal balance;
(xii) the original principal amount of the Assistance Loan;
(xiii) the principal balance of the Assistance Loan as of the
close of business on the Cut-off Date;
(xiv) whether the loan is a Mortgage Loan;
(xv) whether the loan is a Simple Interest Assistance Loan;
and
(xvi) whether the loan is a MERS Mortgage Loan or a MERS
Eligible Mortgage Loan and, if so, the MERS identification number, if
available.
3
Best Efforts: Efforts determined to be reasonably diligent by each
Seller (with respect to its related Assistance Loans) or the Servicer, as the
case may be, in its sole discretion. Such efforts do not require either Seller
(with respect to its related Assistance Loans) or Servicer, as the case may be,
to enter into any litigation, arbitration or other legal or quasi-legal
proceeding, nor do they require either Seller (with respect to its related
Assistance Loans) or Servicer, as the case may be, to advance or expend fees or
sums of money in addition to those specifically set forth in this Agreement.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in New York, Colorado, Maryland and Minnesota
(or any state in which the corporate trust office of the Trustee is located) are
authorized or obligated by law or executive order to be closed.
Certificates: Any or all of the Certificates issued pursuant to the
Trust Agreement.
Closing Date: On or about March 8, 2002.
Code: The Internal Revenue Code of 1986, as it may be amended from time
to time or any successor statute thereto, and applicable U.S. Department of the
Treasury regulations issued pursuant thereto.
Collateral: With respect to any Mortgage Loan, the Mortgaged Property
and, with respect to any other Assistance Loan, the collateral securing
repayment of the debt evidenced by a Promissory Note.
Collection Period: With respect to any Remittance Date, the calendar
month immediately preceding the month in which such Remittance Date occurs.
Condemnation Proceeds: All awards of settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan documents.
Costs: For any Person, any claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses of such Person.
Custodial Account: The separate account or accounts created and
maintained pursuant to Section 3.03.
Custodial Agreement: The custodial agreements relating to custody of
certain of the Assistance Loans, between LaSalle Bank N.A., and the Trustee,
dated February 1, 2002 and between U.S. Bank National Association and the
Trustee, dated February 1, 2002.
Custodians: LaSalle Bank N.A. and U.S. Bank National Association, and
their respective successors.
Cut-off Date: February 1, 2002.
4
Depositor: Structured Asset Securities Corporation, or any successor in
interest.
Determination Date: With respect to each Remittance Date, the 15th day
of the month in which such Remittance Date occurs, or, if such 15th day is not a
Business Day, the next succeeding Business Day.
Distribution Date: The 25th day of each month, or, if such 25th day is
not a Business Day, the next succeeding Business Day commencing in March 2002.
Due Date: The day of the month on which the Monthly Payment is due on
an Assistance Loan, exclusive of any days of grace. With respect to the
Assistance Loans for which payment from the Obligor is due on a day other than
the first day of the month, such Assistance Loans will be treated as if the
Monthly Payment is due on the first day of the immediately succeeding month.
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, FNMA or FHLMC 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;
5
(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 Loan Balance and the aggregate principal amount of all Eligible
Investments in the Certificate Account; provided, further, that such securities
will not be Eligible Investments if they are published as being under review
with negative implications from any 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 any 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 or an affiliate thereof serves as an investment advisor, administrator,
shareholder servicing agent, and/or custodian or subcustodian, notwithstanding
that (x) the Trustee or an affiliate thereof charges and collects fees and
expenses from such funds for services rendered, (y) the Trustee 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.
Errors and Omissions Insurance: Errors and Omissions Insurance to be
maintained by the Servicer in accordance with the FNMA Guides.
6
Escrow Account: The separate account or accounts created and maintained
pursuant to Section 3.05.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
Event of Default: Any event set forth in Section 8.01.
FASIT: A "financial asset securitization investment trust" within the
meaning of Section 860L(a) of the Code.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Fidelity Bond: A fidelity bond to be maintained by the Servicer in
accordance with the FNMA Guides.
Fitch: Fitch Ratings, or any successor in interest.
FNMA: The Federal National Mortgage Association, or any successor
thereto.
FNMA Guides: The FNMA Selling Guide and the FNMA Servicing Guide and
all amendments or additions thereto.
GNMA: The Government National Mortgage Association, or any successor
thereto.
Insurance Proceeds: With respect to each Assistance Loan, proceeds of
insurance policies insuring the Assistance Loan or the related Collateral
including proceeds of any hazard or flood insurance policy or special peril
coverage.
Liquidation Proceeds: Cash received in connection with the liquidation
of a defaulted Assistance Loan, whether through the sale or assignment of such
Assistance Loan, trustee's sale, foreclosure sale or otherwise, or, in the case
of Mortgaged Property acquired in lieu of foreclosure on a Mortgage Loan, the
sale of the related REO Property.
Loan Authorization and Agreement: The loan authorization and agreement
between the SBA and the related Obligor setting forth the terms and conditions
of the Assistance Loan and authorizing approval of the same.
Loan Remittance Rate: With respect to any Assistance Loan, the annual
rate of interest remitted to the Trustee, which shall be equal to the Net Rate
of such Assistance Loan.
LPMI Fee: Not applicable.
7
LPMI Insurer: None.
LPMI Loan: Not applicable.
LPMI Policy: Not applicable.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor in interest thereto.
MERS Eligible Mortgage Loan: Any Mortgage Loan that has been designated
by the Servicer as recordable in the name of MERS.
MERS Mortgage Loan: Any Mortgage Loan as to which the related Mortgage,
or an Assignment of Mortgage, has been or will be recorded in the name of MERS,
as agent for the holder from time to time of the Mortgage Note.
Monthly Advance: With respect to each Remittance Date and each
Assistance Loan, an amount equal to the excess, if any, of 30 days' interest on
the unpaid principal balance of such Assistance Loan as of the beginning of the
related Collection Period calculated at the related Loan Remittance Rate over
the Monthly Payment for such Assistance Loan to the extent collected during the
related Collection Period, 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 Assistance Loan; provided, however that
with respect to any unsecured Assistance Loan, the Servicer will never have
advanced more than 60 days interest. To the extent that the Servicer determines
that any such amount is not recoverable from collections or other recoveries in
respect of such Assistance Loan (except in the case of an unsecured Assistance
Loan), such determination shall be evidenced by a certificate of a Servicing
Officer delivered to the Trustee setting forth such determination.
Monthly Payment: The scheduled monthly payment of principal and/or
interest on an Assistance Loan.
Moody's: Xxxxx'x Investors Service, Inc., or any successor in interest.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which purports to create a lien on an unsubordinated estate in
fee simple in real property securing the Mortgage Note.
Mortgage Impairment Insurance Policy: With respect to Mortgage Loans, a
mortgage impairment or blanket hazard insurance policy as described in the FNMA
Guides.
Mortgage Interest Rate: The annual rate of interest borne on a Mortgage
Note after giving effect to any Relief Act Reduction.
Mortgage Loan: An individual Mortgage Loan that is the subject of this
Agreement, each Mortgage Loan subject to this Agreement being identified as a
Mortgage Loan on the Assistance Loan Schedule, which Mortgage Loan includes
without limitation the Mortgage Loan documents, the Monthly Payments, 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
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property securing repayment of the debt
evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Net Rate: With respect to any Mortgage Loan, the related Mortgage
Interest Rate, less the applicable Servicing Fee Rate. With respect to any
Assistance Loan (other than a Mortgage Loan), the rate of interest on the
related Promissory Note, less the applicable Servicing Fee Rate.
Net Simple Interest Excess: With respect to any Distribution Date, as
determined by the Servicer, the excess, if any, of (a) the amount of Monthly
Payments received by the Servicer and any Monthly Advances made by the Servicer
in the related Collection Period allocable to interest in respect of such Simple
Interest Assistance Loans, calculated in accordance with the Simple Interest
Method, net of the related Servicing Fees, over (b) the interest that would have
accrued on the Simple Interest Assistance Loans for the related Collection
Period if each such loan bore interest at a rate equal to the weighted average
(by Principal Balance) of the Net Rates of the Simple Interest Assistance Loans
as of the first day of the related Collection Period, as determined by the
Servicer, on the aggregate Principal Balance of such Simple Interest Assistance
Loans for such Distribution Date, carried to six decimal places, rounded down,
and calculated on the basis of a 360-day year consisting of twelve 30-day
months. For this purpose, the amount of interest received in respect of the
Simple Interest Assistance Loans in any month shall be deemed (a) to include any
Monthly Advances of interest made by the Servicer in such month in respect of
such Simple Interest Assistance Loans, (b) to be reduced by any amounts paid to
the Servicer in such month in reimbursement of Monthly Advances previously made
by the Servicer in respect of such Simple Interest Assistance Loans (including
Simple Interest Assistance Loans that, at the time of reimbursement, are no
longer part of the Trust Fund) and (c) to include any withdrawals by the Trustee
from the Simple Interest Reserve Fund.
Net Simple Interest Shortfall: With respect to any Distribution Date,
as determined by the Servicer, the excess, if any, of (a) the interest that
would have accrued on the Simple Interest Assistance Loans for the related
Collection Period if each such loan bore interest at a rate equal to the
weighted average (by Principal Balance) of the Net Rates of the Simple Interest
Assistance Loans as of the first day of the related Collection Period, as
determined by the Servicer, on the aggregate Principal Balance of such Simple
Interest Assistance Loans for such Distribution Date, carried to six decimal
places, rounded down, and calculated on the basis of a 360-day year consisting
of twelve 30-day months, over (b) the amount of Monthly Payments received by the
Servicer and any Monthly Advances made by the Servicer in the related Collection
Period allocable to interest in respect of such Simple Interest Assistance
Loans, calculated in accordance with the Simple Interest Method, net of the
related Servicing Fees.
9
Non-MERS Eligible Mortgage Loan: Any Mortgage Loan other than a MERS
Eligible Mortgage Loan.
Non-MERS Mortgage Loan: Any Mortgage Loan other than a MERS Mortgage
Loan.
Obligor: The Mortgagor or other obligor under any Assistance Loan.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Servicer, reasonably acceptable to each Seller (with respect to
its related Assistance Loans), but which must be independent outside counsel
with respect to any such opinion of counsel concerning (i) the non-recordation
of Mortgage Loans pursuant to Section 2.02 hereof and (ii) federal income tax
matters.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
Pool 1: The meaning set forth in the Trust Agreement.
Pool 1 Mortgage Loans: The outstanding Mortgage Loans in Pool 1.
Prepayment Interest Shortfall Amount: With respect to any Distribution
Date and any Principal Prepayment in full or in part, the difference between (i)
one full month's interest at the applicable Net Rate and (ii) the amount of
interest actually received with respect to such Assistance Loan in connection
with such Principal Prepayment.
Prime Rate: The prime rate published from time to time, as published as
the average rate in The Wall Street Journal Northeast Edition.
Principal Balance: With respect to (i) any Assistance Loan as of any
date of determination, the unpaid principal balance of such Assistance Loan as
of the close of business on the Cut-off Date, reduced by the principal portion
of all payments received in any Collection Period prior to such date of
determination and (ii) any REO Property as of any date of determination, the
Principal Balance of the related Assistance Loan immediately preceding the date
of acquisition of such REO Property or other collateral by or on behalf of the
Trustee (reduced by any amount applied as a reduction of principal on the
Assistance Loan). With respect to any Assistance Loan as of the Cut-off Date, as
specified in the Assistance Loan Schedule.
Principal Prepayment: Any payment or other recovery of principal on an
Assistance Loan (other than Liquidation Proceeds and Insurance Proceeds) which
is received in advance of the subsequent Collection Period and applied to reduce
the outstanding principal balance of such Assistance Loan.
Prior Servicer: Any prior servicer (other than the Servicer) of any of
the Assistance Loans.
10
Promissory Note: The original executed promissory note evidencing the
indebtedness of an Obligor under an Assistance Loan or, if such Assistance Loan
is not evidenced by a promissory note, the original loan agreement or other
instrument primarily evidencing the indebtedness of the Obligor under such
Assistance Loan.
Qualified Depository: Any of (i) a federal or state-chartered
depository institution the accounts of which are insured by the FDIC and whose
commercial paper, short-term debt obligations or other short-term deposits are
rated at least "A-1+" by S&P 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 S&P if the deposits are to be held in the account for more than 30
days, or (ii) the corporate trust department of a federal or state-chartered
depository institution subject to regulations regarding fiduciary funds on
deposit similar to Title 12 of the Code of Federal Regulations Section 9.10(b),
which, in either case, has corporate trust powers, acting in its fiduciary
capacity, or (iii) the Bank.
Qualified Insurer: A mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by FNMA or FHLMC.
Rating Agency: Each of Fitch, Xxxxx'x and S&P.
Relief Act Reduction: With respect to any Assistance Loan as to which
there has been a reduction in the amount of the interest collectible thereon as
a result of the application of the Soldiers' and Sailors' Civil Relief Act of
1940, as amended, any amount by which interest collectible on such Assistance
Loan in the related Collection Period is less than the interest accrued thereon
for the applicable one-month period at the Net Rate without giving effect to
such reduction.
Remittance Date: The 18th day (or if such 18th day is not a Business
Day, the first Business Day immediately following) of any month.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Disposition Proceeds: All amounts received with respect to an REO
Disposition pursuant to Section 3.15.
REO Property: A Mortgaged Property acquired by the Servicer on behalf
of the Trustee through foreclosure or by deed in lieu of foreclosure, pursuant
to Section 3.15.
Retained Interest: The meaning set forth in the Trust Agreement.
Retained Interest Holder: The meaning set forth in the Trust Agreement.
Retained Interest Rate: The meaning set forth in the Trust Agreement.
S&P: Standard & Poor's Ratings Service, a division of the XxXxxx-Xxxx
Companies, Inc., or any successor in interest.
11
SBA: The United States Small Business Administration.
Securities Administrator: None.
Security Agreement: With respect to a secured Assistance Loan (other
than Mortgage Loans), the written instrument entered into between a related
Obligor and the SBA in the form of a security agreement or other similar
instrument creating a valid lien on the Collateral.
Servicer: Aurora Loan Services Inc. or its successor in interest or
assigns or any successor to the Servicer under this Agreement as herein
provided.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) incurred in the performance by the Servicer of its servicing
obligations, including, but not limited to, the cost of (i) the preservation,
inspection, restoration and protection of the Collateral, (ii) any collection
efforts and any enforcement or administrative or judicial proceedings, including
foreclosures, (iii) the management and liquidation of the Collateral if the
Collateral is acquired in satisfaction of the loan, (iv) taxes, assessments,
water rates, sewer rents and other charges which are or may become a lien upon a
Mortgaged Property, and fire and hazard insurance coverage, (v) any losses
sustained by the Servicer with respect to collection on the Assistance Loans or
liquidation of the Collateral or other assets of the Obligor and (vi) compliance
with the obligations hereunder pursuant to the provisions of the FNMA Guides (to
the extent possible) and this Agreement.
Servicing Fee: An amount equal to one-twelfth the product of (i) the
Servicing Fee Rate and (ii) the outstanding principal balance of such Assistance
Loan. Except as otherwise provided in this Agreement, the obligation of the
Trustee to pay the Servicing Fee is limited to, and the Servicing Fee is payable
solely from, the interest portion (including recoveries with respect to interest
from Liquidation Proceeds to the extent permitted by Section 3.02 of this
Agreement) of such Monthly Payment collected by the Servicer.
Servicing Fee Rate: A per annum rate equal to 0.25%.
Servicing File: The items pertaining to a particular Assistance Loan
including, but not limited to, the computer files, data disks, books, records,
data tapes, notes, and all additional documents generated as a result of or
utilized in originating and/or servicing each Assistance Loan, which are held in
trust for the Trustee by the Servicer.
Servicing Officer: Any officer of the Servicer involved in or
responsible for, the administration and servicing of the Assistance Loans whose
name appears on a list of servicing officers furnished by the Servicer to the
Trustee or either Seller upon request, as such list may from time to time be
amended.
Servicing Transfer: Any transfer of the servicing by a Prior Servicer
of Assistance Loans to the Servicer under this Agreement.
Servicing Transfer Date: The date on which a Servicing Transfer occurs.
12
Simple Interest Assistance Loan: Each Assistance Loan identified as a
Simple Interest Assistance Loan on the Assistance Loan Schedule.
Simple Interest Method: The method of allocating a payment to principal
and interest, pursuant to which the portion of such payment that is allocated to
interest is equal to the product of the applicable rate of interest multiplied
by the unpaid principal balance multiplied by the period of time elapsed since
the preceding payment of interest was made and divided by either 360 or 365, as
specified in the related Promissory Note or Mortgage Note, as applicable, and
the remainder of such payment, if any, is allocated to principal.
Simple Interest Reserve Fund: The reserve fund established by the
Trustee pursuant to Section 4.05 of the Trust Agreement.
Trust Agreement: The Trust Agreement dated as of February 1, 2002,
between the Trustee and the Depositor.
Trust Fund: The trust fund established by the Trust Agreement, the
assets of which consist of the Assistance Loans and any related assets.
Trustee: Xxxxx Fargo Bank Minnesota, National Association, or any
successor in interest, or if any successor trustee or co-trustee shall be
appointed as provided in the Trust Agreement, then such successor trustee or
such co-trustee, as the case may be.
Any capitalized terms used and not defined in this Agreement shall have
the meanings ascribed to such terms in the Trust Agreement.
ARTICLE II.
SELLER'S ENGAGEMENT OF SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Servicing Files.
Each Seller (with respect to its related Assistance Loans), by
execution and delivery of this Agreement, does hereby contract with the
Servicer, subject to the terms of this Agreement, for the servicing of the
Assistance Loans. On or before the Closing Date or Servicing Transfer Date, as
applicable, each Seller (with respect to its related Assistance Loans) shall
cause to be delivered the Servicing Files with respect to its related Assistance
Loans listed on the Assistance Loan Schedule to the Servicer. While in the
possession of the Servicer, the Holder of the Class A1 Certificates (so long as
the Class A1 Certificates are outstanding) shall have the right to access the
Servicing Files of any of the Pool 1 Mortgage Loans on reasonable advance notice
during normal business hours. Each Servicing File delivered to the Servicer
shall be held in trust by the Servicer for the benefit of the Trustee, provided,
however, that the Servicer shall have no liability for any Servicing Files (or
portions thereof) not delivered by each Seller (with respect to its related
Assistance Loans). The Servicer's possession of any portion of the Assistance
Loan Files or Mortgage Loan documents shall be at the will of the Trustee for
the sole purpose of facilitating servicing of the related Assistance Loan
pursuant to this Agreement, and such retention and possession by the Servicer
shall be in a custodial capacity only. The ownership of each Mortgage Note,
Mortgage, Promissory Note, Security Agreement and the contents of the Servicing
File shall be vested in the Trustee and the ownership of all records and
documents with respect to the related Assistance Loan prepared by or which come
into the possession of the Servicer shall immediately vest in the Trustee and
shall be retained and maintained, in trust, by the Servicer at the will of the
Trustee in such custodial capacity only. The portion of each Servicing File
retained by the Servicer pursuant to this Agreement shall be segregated from the
other books and records of the Servicer and shall be appropriately marked to
clearly reflect the ownership of the related Assistance Loan by the Trustee. The
Servicer shall release from its custody the contents of any Servicing File
retained by it only in accordance with this Agreement.
13
Section 2.02 Books and Records.
(a) Subject to Section 3.01(a) hereof, as soon as practicable after the
Closing Date, the Servicing Transfer Date or the date on which a Qualifying
Substitute Assistance Loan is delivered pursuant to Section 2.05 of the Trust
Agreement, as applicable (but in no event more than 90 days thereafter except to
the extent delays are caused by the SBA or the applicable recording office), the
Servicer, at the expense of the Depositor, shall cause the Mortgage or
Assignment, as applicable, with respect to each MERS Eligible Mortgage Loan, to
be properly recorded in the name of MERS in the public recording office in the
applicable jurisdiction, or shall ascertain that such have previously been so
recorded and, with the cooperation of the Trustee, shall take such actions as
are necessary to cause the Trustee to be clearly identified as the owner of each
MERS Mortgage Loan and each MERS Eligible Mortgage Loan on the records of MERS
for purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS.
(b) Subject to Section 3.01(a) hereof, an Assignment in favor of the
Trustee shall be recorded as to each secured Assistance Loan (including Non-MERS
Mortgage Loans) unless instructions to the contrary are delivered to the
Servicer, in writing, by the Trustee. Subject to the preceding sentence, as soon
as practicable after the Closing Date or Servicing Transfer Date, as applicable
(but in no event more than 90 days thereafter except to the extent delays are
caused by the SBA or the applicable recording office), the Servicer, at the
expense of the Depositor, shall cause to be properly recorded in each public
recording office where such Assistance Loans (or the related Security
Agreements) are recorded, each Assignment.
(c) Additionally, the Servicer shall prepare and execute, at the
direction of the Trustee, any note endorsements relating to any of the
Assistance Loans.
(d) All rights arising out of the Assistance Loans shall be vested in
the Trustee, subject to the Servicer's right to service and administer the
Assistance Loans hereunder in accordance with the terms of this Agreement. All
funds received on or in connection with an Assistance Loan, other than the
Servicing Fee and other compensation to which the Servicer is entitled as set
forth herein, including but not limited to in Section 5.01 below, shall be
received and held by the Servicer in trust for the benefit of the Trustee
pursuant to the terms of this Agreement.
(e) Any out-of-pocket costs incurred by the Servicer pursuant to this
Section 2.02 and Section 3.01(a), including any recording or other fees in
connection with the Servicer's obtaining the necessary powers of attorney (and
which are specified herein to be an expense of each Seller (with respect to its
related Assistance Loans)), shall be reimbursed to the Servicer by each Seller
(with respect to its related Assistance Loans) within five (5) Business Days of
receipt by such Seller of an invoice for reimbursement. The Trust Fund shall not
reimburse either Seller for any such reimbursement to the Servicer.
14
ARTICLE III.
SERVICING OF THE MORTGAGE LOANS
Section 3.01Servicer to Service.
The Servicer, as an independent contractor, shall service and
administer the Assistance Loans from and after the Closing Date or Servicing
Transfer Date, as applicable, and shall have full power and authority, acting
alone, to do any and all things in connection with such servicing and
administration which the Servicer may deem necessary or desirable, consistent
with the terms of this Agreement and with Accepted Servicing Practices.
Each Seller (with respect to its related Assistance Loans) and the
Servicer additionally agree as follows:
(a) The Servicer shall (i) record or cause to be recorded the Mortgage
or the Assignment, as applicable, with respect to all MERS Eligible Mortgage
Loans, in the name of MERS, or shall ascertain that such have previously been so
recorded; (ii) with the cooperation of the Trustee, take such actions as are
necessary to cause the Trustee to be clearly identified as the owner of each
MERS Mortgage Loan and each MERS Eligible Mortgage Loan on the records of MERS
for purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS; (iii) prepare or cause to be prepared all
Assignments with respect to all other secured Assistance Loans (including
Non-MERS Eligible Mortgage Loans); (iv) record or cause to be recorded, subject
to Section 2.02(b) hereof, all Assignments with respect to all other secured
Assistance Loans (including Non-MERS Mortgage Loans) in the name of the Trustee;
(v) subject to other provisions in this subsection 3.01(a), file or cause to be
filed all financing statements or other filings necessary to perfect a security
interest in the Collateral and continue and/or maintain a validly perfected
security interest in the Collateral with respect to all secured Assistance Loans
(other than Mortgage Loans), including the filing of all continuation
statements; (vi) pay the recording costs pursuant to Section 2.02 hereof; and/or
(vii) track such Mortgages and Assignments to ensure they have been recorded.
Notwithstanding the foregoing, the Servicer shall not be required to file an
initial financing statement under subclause (v) above to perfect a security
interest in the Collateral with respect to any secured Assistance Loan unless
the reports prepared and certified by the Custodians (the "Initial
Certifications") and delivered to the Servicer on the Closing Date indicate that
an initial financing statement has not been previously filed with respect to a
secured Assistance Loan (other than Mortgage Loans). The Servicer shall be
entitled to be paid by each Seller (with respect to its related Assistance
Loans) fees for the preparation and recordation of the Mortgages and
Assignments. After the expenses of such recording costs pursuant to Section 2.02
hereof shall have been paid by the Servicer, the Servicer shall submit to the
Depositor a reasonably detailed invoice for reimbursement of recording costs and
fees it incurred hereunder.
15
(b) If applicable, the Servicer shall, in accordance with the relevant
provisions of the Xxxxxxxx-Xxxxxxxx National Affordable Housing Act of 1990, as
the same may be amended from time to time, and the regulations provided in
accordance with the Real Estate Settlement Procedures Act, provide notice to the
Mortgagor of each Mortgage Loan of the transfer of the servicing thereto to the
Servicer.
(c) The Servicer shall be responsible for the preparation of and costs
associated with notifications to Obligors of the assumption of servicing by the
Servicer.
Consistent with the terms of this Agreement, the Servicer may waive any
late payment charge, assumption fee or other fee that may be collected in the
ordinary course of servicing the Assistance Loans. The Servicer shall not make
any future advances to any obligor under any Assistance Loan, and (unless the
Obligor is in default with respect to the Assistance Loan or such default is, in
the judgment of the Servicer, reasonably foreseeable) the Servicer shall not
permit any modification of any material term of any Assistance Loan, including
any modification that would change the Net 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 Assistance Loan. In the event of any such modification which permits the
deferral of interest or principal payments on any Assistance Loan, the Servicer
shall, on the Business Day immediately preceding the Remittance Date in any
month in which any such principal or interest payment has been deferred, make a
Monthly Advance in accordance with Section 4.04, in an amount equal to the
difference between (i) such month's principal and one month's interest at the
Loan Remittance Rate on the unpaid principal balance of such Assistance Loan and
(ii) the amount paid by the Obligor. In addition, the Servicer shall indemnify
the Holder of the Class A1 Certificates (so long as the Class A1 Certificates
are outstanding) for any collection shortfall resulting from the modification of
any Pool 1 Mortgage Loan which is not consistent with the terms of the related
Mortgage Note. The Servicer shall be entitled to reimbursement for such advances
to the same extent as for all other advances made pursuant to Section 4.04.
Without limiting the generality of the foregoing, the Servicer shall continue,
and is hereby authorized and empowered, to execute and deliver on behalf of
itself and the Trustee, all instruments of satisfaction or cancellation, or of
partial or full release, discharge and all other comparable instruments, with
respect to the Assistance Loans and with respect to the Collateral. Upon the
request of the Servicer, the Trustee shall execute and deliver to the Servicer
any powers of attorney and other documents, furnished to it by the Servicer and
reasonably satisfactory to the Trustee, necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties under this
Agreement. Promptly after the execution of any assumption, modification,
consolidation or extension of any Assistance Loan, the Servicer shall (i)
forward to the Custodian copies of any documents evidencing such assumption,
modification, consolidation or extension and (ii) provide notice to the Holder
of the Class A1 Certificates in the case of an assumption, modification,
consolidation or extension of any Pool 1 Mortgage Loan. Notwithstanding anything
to the contrary contained in this Servicing Agreement, the Servicer shall not
make or permit any modification, waiver or amendment of any term of any
Assistance Loan that would cause the Trust Fund to fail to qualify as a FASIT or
result in the imposition of any tax under Section 860L(e) of the Code. In
addition, (i) if the Class B4 Certificates are no longer outstanding or (ii) if
the aggregate number of outstanding amended, waived or modified Pool 1 Mortgage
Loans exceeds 5% of the aggregate number of Pool 1 Mortgage Loans as of the
Cut-off Date, any amendment, waiver or modification of a Pool 1 Mortgage Loan by
the Servicer shall require the consent of the Holder of the Class A1
Certificates (to the extent such Class A1 Certificates are still outstanding).
Upon request by the Servicer, the Trustee shall provide information sufficient
for the Servicer to determine whether the consent of the Holder of the Class A1
Certificates is required.
16
Section 3.02 Collection of Assistance Loan Payments.
Continuously from the Closing Date or Servicing Transfer Date, as
applicable, until the date each Assistance Loan ceases to be subject to this
Agreement, the Servicer shall proceed diligently to collect all payments due
under each of the Assistance Loans when the same shall become due and payable
and shall take special care in ascertaining and estimating Escrow Payments, if
any, and all other charges that will become due and payable with respect to the
Assistance Loans and the related Collateral, to the end that the installments
payable by the Obligors will be sufficient to pay such charges as and when they
become due and payable. The Servicer shall also apply payments of interest and
principal against any Simple Interest Assistance Loans in accordance with
Accepted Servicing Practices using the Simple Interest Method.
Section 3.03 Establishment of and Deposits to Custodial Account.
The Servicer shall segregate and hold all funds collected and received
pursuant to the Assistance Loans separate and apart from any of its own funds
and general assets and shall establish and maintain one or more Custodial
Accounts, in the form of time deposit or demand accounts, titled "Xxxxx Fargo
Bank Minnesota, National Association, as Trustee for SASCO 2002-AL1." The
Custodial Account shall be established with a Qualified Depository. Any funds
deposited in the Custodial Account may be invested in Eligible Investments
subject to the provisions of Section 3.10 hereof. Funds deposited in the
Custodial Account may be drawn on by the Servicer in accordance with Section
3.04. The creation of any Custodial Account shall be evidenced by a letter
agreement in the form of Exhibit B. A copy of such certification or letter
agreement shall be furnished to the Trustee and, upon request, to any subsequent
owner of the Assistance Loans.
The Servicer shall deposit in the Custodial Account on a daily basis,
and retain therein, the following collections received by the Servicer and
payments made by the Servicer after the Closing Date or Servicing Transfer Date,
as applicable:
(i) all payments on account of principal on the Assistance
Loans, including all Principal Prepayments;
(ii) all payments on account of interest on the Assistance
Loans adjusted to the related Loan Remittance Rate;
(iii) all Liquidation Proceeds;
17
(iv) all Insurance Proceeds (other than amounts applied to the
restoration or repair of the Collateral or immediately released to the Obligor
in accordance with Accepted Servicing Practices);
(v) all Condemnation Proceeds that are not applied to the
restoration or repair of the Mortgaged Property or released to the Mortgagor;
(vi) with respect to each Principal Prepayment in full or in
part, the Prepayment Interest Shortfall Amount, if any, for the month of
distribution. Such deposit shall be made from the Servicer's own funds, without
reimbursement therefor, up to a maximum amount per month of the Servicing Fee
actually received for such month for the Assistance Loans;
(vii) all Monthly Advances made by the Servicer pursuant to
Section 4.04;
(viii) any amounts required to be deposited by the Servicer in
connection with the deductible clause in any blanket hazard insurance policy;
(ix) any amounts received with respect to or related to any
REO Property or REO Disposition Proceeds; and
(x) any other amount required hereunder to be deposited by the
Servicer in the Custodial Account.
The foregoing requirements for deposit into the Custodial Account shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of the Servicing Fee and
Ancillary Income need not be deposited by the Servicer into the Custodial
Account.
Any interest paid on funds deposited in the Custodial Account by the
depository institution shall accrue to the benefit of the Servicer and the
Servicer shall be entitled to retain and withdraw such interest from the
Custodial Account pursuant to Section 3.04. Additionally, any other benefit
derived from the Custodial Account associated with the receipt, disbursement and
accumulation of principal, interest, taxes, hazard insurance, mortgage
insurance, etc. shall accrue to the Servicer.
Section 3.04 Permitted Withdrawals from Custodial Account.
The Servicer shall, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(i) to make payments to the Trustee in the amounts and in the
manner provided for in Section 4.01;
(ii) [Reserved].
18
(iii) in the event the Servicer has elected not to retain the
Servicing Fee out of any Obligor payments on account of interest or other
recovery of interest with respect to a particular Assistance Loan (including
late collections of interest on such Assistance Loan, or interest portions of
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds) prior to the
deposit of such Obligor payment or recovery in the Custodial Account, to pay to
itself the related Servicing Fee from all such Obligor payments on account of
interest or other such recovery for interest with respect to that Assistance
Loan;
(iv) to pay itself investment earnings on funds deposited in
the Custodial Account;
(v) to clear and terminate the Custodial Account upon the
termination of this Agreement;
(vi) to transfer funds to another Qualified Depository in
accordance with Section 3.10 hereof;
(vii) to invest funds in certain Eligible Investments in
accordance with Section 3.10 hereof;
(viii) to make distributions of the Retained Interest to the
Retained Interest Holder on each Distribution Date;
(ix) to reimburse itself to the extent of funds in the
Custodial Account for Monthly Advances of the Servicer's funds made pursuant to
Section 4.04, the Servicer's right to reimburse itself pursuant to this
subclause (ix) with respect to any Assistance Loan is limited to amounts
received on or in respect of the related Assistance Loan which represent late
recoveries of payments of principal or interest with respect to which a Monthly
Advance was made, it being understood that, in the case of any such
reimbursement, the Servicer's right thereto shall be prior to the rights of the
Trust Fund, provided, however, that following the final liquidation of an
Assistance Loan, the Servicer may reimburse itself for previously unreimbursed
Monthly Advances in excess of Liquidation Proceeds or Insurance Proceeds with
respect to such Assistance Loan from any funds in the Custodial Account, it
being understood, in the case of any such reimbursement, that the Servicer's
right thereto shall be prior to the rights of the Trust Fund. The Servicer may
recover at any time from amounts on deposit in the Custodial Account the amount
of any Monthly Advances that the Servicer deems nonrecoverable or that remain
unreimbursed to the Servicer from related Liquidation Proceeds, if any, after
the final liquidation of the Assistance Loan;
(x) to reimburse itself for unreimbursed Servicing Advances,
and for any unpaid Servicing Fees, the Servicer's right to reimburse itself
pursuant to this subclause (x) with respect to any Assistance Loan being limited
to related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds and other amounts received in respect of the related REO
Property, and such other amounts as may be collected by the Servicer from the
Obligor or otherwise relating to the Assistance Loan; provided, however that,
following the liquidation of an Assistance Loan, the Servicer may reimburse
itself for any unpaid Servicing Advances and Servicing Fees to the extent not
recoverable from Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds or other amounts received in respect of the
related REO Property, and such other amounts as may be collected by the Servicer
from the Obligor or otherwise relating to the Assistance Loan; and provided,
further, that in the case of any such reimbursement, the Servicer's right
thereto shall be prior to the rights of the Trust Fund;
19
(xi) to reimburse itself for expenses incurred or reimbursable
to the Servicer pursuant to Sections 3.11, 3.12 and 6.03 to the extent not
previously reimbursed under clause (ix) of this Section 3.04; and
(xii) to withdraw funds deposited in the Custodial Account in
error.
Section 3.05 Establishment of and Deposits to Escrow Account.
The Servicer shall segregate and hold all funds collected and received
pursuant to an Assistance Loan constituting Escrow Payments separate and apart
from any of its own funds and general assets and shall establish and maintain
one or more Escrow Accounts, in the form of time deposit or demand accounts,
titled "Xxxxx Fargo Bank Minnesota, National Association, as Trustee for SASCO
2002-AL1." The Escrow Accounts shall be established with a Qualified Depository
in a manner that shall provide maximum available insurance thereunder. Funds
deposited in the Escrow Account may be drawn on by the Servicer in accordance
with Section 3.06. The creation of any Escrow Account shall be evidenced by a
letter agreement in the form of Exhibit C. A copy of such certification or
letter agreement shall be furnished to the Trustee and, upon request, to any
subsequent owner of the Assistance Loans.
The Servicer shall deposit in the Escrow Account or Accounts on a daily
basis, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds or
Condemnation Proceeds that are to be applied to the restoration or repair of any
Collateral.
The Servicer shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 3.06. The Servicer shall retain any interest paid on funds deposited in
the Escrow Account by the depository institution, other than interest on
escrowed funds required by law to be paid to the Obligor. Additionally, any
other benefit derived from the Escrow Account associated with the receipt,
disbursement and accumulation of principal, interest, taxes, hazard insurance,
mortgage insurance, etc. shall accrue to the Servicer. To the extent required by
law, the Servicer shall pay interest on escrowed funds to the Obligor
notwithstanding that the Escrow Account may be non-interest bearing or that
interest paid thereon is insufficient for such purposes.
20
Section 3.06 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the
Servicer only:
(i) to effect timely payments of ground rents, taxes,
assessments, water rates, sewer rents, mortgage insurance premiums, condominium
charges, fire and hazard insurance premiums or other items constituting Escrow
Payments for the related Mortgage;
(ii) to refund to any Mortgagor any funds found to be in
excess of the amounts required under the terms of the related Mortgage Loan;
(iii) for transfer to the Custodial Account and application to
reduce the principal balance of the Mortgage Loan in accordance with the terms
of the related Mortgage and Mortgage Note;
(iv) to reimburse the Servicer for any Servicing Advance made
by the Servicer with respect to a related Mortgage Loan, but only from amounts
received on the related Mortgage Loan which represent late collections of Escrow
Payments;
(v) for application to restoration or repair of the Collateral
in accordance with the FNMA Guides;
(vi) to pay to the Servicer, or any Obligor to the extent
required by law, any interest paid on the funds deposited in the Escrow Account;
(vii) to remove funds inadvertently placed in the Escrow
Account by the Servicer; and
(viii) to clear and terminate the Escrow Account on the
termination of this Agreement.
Section 3.07 [Reserved].
Section 3.08 Fidelity Bond and Errors and Omissions Insurance.
The Servicer shall keep in force during the term of this Agreement a
Fidelity Bond and Errors and Omissions Insurance. Such Fidelity Bond and Errors
and Omissions Insurance shall be maintained with recognized insurers and shall
be in such form and amount as would permit the Servicer to be qualified as a
FNMA or FHLMC seller-servicer. The Servicer shall be deemed to have complied
with this provision if an affiliate of the Servicer has such errors and
omissions and fidelity bond coverage and, by the terms of such insurance policy
or fidelity bond, the coverage afforded thereunder extends to the Servicer. The
Servicer shall furnish to the Trustee a copy of each such bond and insurance
policy if (i) the Trustee so requests and (ii) the Servicer is not an affiliate
of Xxxxxx Brothers Inc. at the time of such request.
21
Section 3.09 Completion and Recordation of Assignments.
As soon as practicable after the Closing Date, the Servicing Transfer
Date or the date on which a Qualifying Substitute Assistance Loan is delivered
pursuant to Section 2.05 of the Trust Agreement, as applicable (but in no event
more than 90 days thereafter except to the extent delays are caused by the SBA
or the applicable public recording office), the Servicer shall cause the
endorsements on the Promissory Note or the Mortgage Note (if applicable), the
Assignments (subject to Section 3.01(a)) and the assignment of Security
Agreements to be completed in the name of the Trustee (or MERS, as applicable)
and any financing statement with respect to Assistance Loans secured by
Collateral other than real estate.
Section 3.10 Protection of Accounts.
The Servicer may transfer the Custodial Account or the Escrow Account
to a different Qualified Depository from time to time. Such transfer shall be
made only upon obtaining the consent of the Trustee, which consent shall not be
withheld unreasonably.
The Servicer shall bear any expenses, losses or damages sustained by
the Trustee if the Custodial Account and/or the Escrow Account are not demand
deposit accounts.
Amounts on deposit in the Custodial Account and the Escrow Account may
at the option of the Servicer be invested in Eligible Investments; provided that
in the event that amounts on deposit in the Custodial Account or the Escrow
Account exceed the amount fully insured by the FDIC (the "Insured Amount") the
Servicer shall be obligated to invest the excess amount over the Insured Amount
in Eligible Investments on the same Business Day as such excess amount becomes
present in the Custodial Account or the Escrow Account. Any such Eligible
Investment shall mature no later than the Business Day immediately preceding the
related Remittance Date, provided, however, that if such Eligible Investment is
an obligation of a Qualified Depository (other than the Servicer) that maintains
the Custodial Account or the Escrow Account, then such Eligible Investment may
mature on the related Remittance Date. Any such Eligible Investment shall be
made in the name of the Servicer in trust for the benefit of the Trustee. All
income on or gain realized from any such Eligible Investment shall be for the
benefit of the Servicer and may be withdrawn at any time by the Servicer. Any
losses incurred in respect of any such investment shall be deposited in the
Custodial Account or the Escrow Account, by the Servicer out of its own funds
immediately as realized.
Section 3.11 Payment of Taxes, Insurance and Other Charges.
With respect to each Mortgage Loan, the Servicer shall maintain
accurate records reflecting the status of ground rents, taxes, assessments,
water rates, sewer rents, and other charges which are or may become a lien upon
the Mortgaged Property and the status of LPMI Policy (if any) premiums and fire
and hazard insurance coverage and shall obtain, from time to time, all bills for
the payment of such charges (including renewal premiums) and shall effect
payment thereof prior to the applicable penalty or termination date, employing
for such purpose deposits of the Mortgagor in the Escrow Account which shall
have been estimated and accumulated by the Servicer in amounts sufficient for
such purposes, as allowed under the terms of the Mortgage. The Servicer assumes
full responsibility for the timely payment of all such bills, shall effect
timely payment of all such charges irrespective of each Mortgagor's faithful
performance in the payment of same or the making of the Escrow Payments, and
shall make advances from its own funds to effect such payments. With regard to
any Mortgage Loans for which the Mortgagor is not required to escrow Escrow
Payments with the Servicer, the Servicer shall use reasonable efforts consistent
with Accepted Servicing Practices to determine that any such payments are made
by the Mortgagor at the time they first became due and shall insure that the
Mortgaged Property is not lost to a tax lien as a result of nonpayment and that
such Mortgage is not left uninsured and shall make advances from its own funds
to effect any such delinquent payments to avoid the lapse of insurance coverage
on the Mortgaged Property or to avoid the imposition of a tax lien.
22
Section 3.12 Maintenance of Hazard Insurance.
The Servicer shall cause to be maintained for each Mortgage Loan,
hazard insurance such that the related Mortgaged Property is insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are customary in the area where the related Mortgaged
Property is located, in an amount which is at least equal to the greater of (i)
the outstanding principal balance of the related Mortgage Loan and (ii) an
amount such that the proceeds thereof shall be sufficient to prevent the related
Mortgagor or the loss payee from becoming a co-insurer.
If upon origination of any Mortgage Loan, the related Mortgaged
Property (i) was located in an area identified in the Federal Register by the
Flood Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available) or (ii) was not located in an area
identified in the Federal Register by the Flood Emergency Management Agency as
having special flood hazards but sustained flood damage necessitating such
Mortgage Loan, a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier in an amount representing coverage equal to the
lesser of (i) the full insurable value of the Mortgaged Property during the life
of the Mortgage Loan and (ii) the maximum amount of insurance which is available
under the Flood Disaster Protection Act of 1973, as amended. If at any time
during the term of the Mortgage Loan, the Servicer determines in accordance with
applicable law and pursuant to the FNMA Guides that any Mortgaged Property is
located in a special flood hazard area and is not covered by flood insurance or
is covered in an amount less than the amount required by the Flood Disaster
Protection Act of 1973, as amended, the Servicer shall notify the related
Obligor that the Obligor must obtain such flood insurance coverage, and if said
Obligor fails to obtain the required flood insurance coverage within forty-five
(45) days after such notification, the Servicer shall force place the required
flood insurance on the Obligor's behalf.
Section 3.13 Maintenance of Mortgage Blanket Insurance.
The Servicer shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards covered under extended coverage on
all of the Mortgage Loans. To the extent such policy provides coverage in an
amount equal to the amount required pursuant to Section 3.12 and otherwise
complies with all other requirements of Section 3.12, it shall conclusively be
deemed to have satisfied its obligations as set forth in Section 3.12. Any
amounts collected by the Servicer under any such policy relating to an
Assistance Loan shall be deposited in the Custodial Account or Escrow Account
subject to withdrawal pursuant to Sections 3.04 or 3.06. Such policy may contain
a deductible clause, in which case, in the event that there shall not have been
maintained on the related Collateral a policy complying with Section 3.12, and
there shall have been a loss which would have been covered by such policy, the
Servicer shall deposit in the Custodial Account at the time of such loss the
amount not otherwise payable under the blanket policy because of such deductible
clause, such amount to be deposited from the Servicer's funds, without
reimbursement therefor.
23
Section 3.14 Restoration of Collateral.
The Servicer need not obtain the approval of the Trustee prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Obligor to be
applied to the restoration or repair of the Collateral if such release is in
accordance with Accepted Servicing Practices. At a minimum, with respect to
claims greater than $10,000, the Servicer shall comply with the following
conditions in connection with any such release of Insurance Proceeds or
Condemnation Proceeds:
(i) the Servicer shall receive satisfactory independent
verification of completion of repairs and issuance of any required approvals
with respect thereto;
(ii) the Servicer shall take all steps necessary to preserve
the priority of the lien of the Mortgage or Security Agreement, including, but
not limited to requiring waivers with respect to mechanics' and materialmen's
liens; and
(iii) pending repairs or restoration, the Servicer shall place
the Insurance Proceeds or Condemnation Proceeds in the Escrow Account.
Section 3.15 Title, Management and Disposition of REO Property.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Trustee (or MERS, as applicable), or in the
event the Trustee is not authorized or permitted to hold title to real property
in the state where the REO Property is located, or would be adversely affected
under the "doing business" or tax laws of such state by so holding title, the
deed or certificate of sale shall be taken in the name of such Person or Persons
as shall be consistent with an Opinion of Counsel obtained by the Servicer from
any attorney duly licensed to practice law in the state where the REO Property
is located. The Person or Persons holding such title other than the Trustee
shall acknowledge in writing that such title is being held as nominee for the
Trustee.
The Servicer shall manage, conserve, protect and operate each REO
Property for the Trustee solely for the purpose of its prompt disposition and
sale. The Servicer, either itself or through an agent selected by the Servicer,
shall manage, conserve, protect and operate the REO Property in the same manner
that it manages, conserves, protects and operates other foreclosed property for
its own account, and in the same manner that similar property in the same
locality as the REO Property is managed. The Servicer shall attempt to sell the
same (and may temporarily rent the same for a period not greater than one year,
except as otherwise provided below) on such terms and conditions as the Servicer
deems to be in the best interest of the Trustee.
24
The Servicer may permit an Obligor to pay off a non-performing
Assistance Loan at less than its unpaid principal balance if such discounted
payoff is in accordance with Accepted Servicing Practices and the Servicer
believes that such discounted payoff is in the best interest of the Trust Fund;
provided that in the case of any proposed discounted payoff, the Servicer shall
notify the Trustee, by telecopy and telephone, of the proposed discounted
payoff. The Trustee shall be deemed to have approved the discounted payoff of
any Mortgage Loan unless the Trustee notifies the Servicer in writing, within
five (5) Business Days after its receipt of the related notice, that it
disapproves of the discounted payoff, in which case the Servicer shall not
proceed with such discounted payoff.
Notwithstanding anything to the contrary contained in this Section
3.15, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the Servicer has reasonable cause to believe that a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
or if the Trustee otherwise requests, an environmental inspection or review of
such Mortgaged Property to be conducted by a qualified inspector shall be
arranged by the Servicer. Upon completion of the inspection, the Servicer shall
provide the Trustee with a written report of such environmental inspection. In
the event that the environmental inspection report indicates that the Mortgaged
Property is contaminated by hazardous or toxic substances or wastes, the
Servicer shall not proceed with foreclosure or acceptance of a deed in lieu of
foreclosure. In the event that the environmental inspection report is
inconclusive as to the whether or not the Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, the Servicer shall not, without the
prior approval of the Trustee and the prior written consent of the Holder of the
Class A1 Certificates (so long as the Class A1 Certificates are outstanding),
proceed with foreclosure or acceptance of a deed in lieu of foreclosure. In such
instance, the Trustee shall be deemed to have approved such foreclosure or
acceptance of a deed in lieu of foreclosure unless the Trustee notifies the
Servicer in writing, within two (2) Business Days after its receipt of written
notice of the proposed foreclosure or deed in lieu of foreclosure from the
Servicer, that it disapproves of the related foreclosure or acceptance of a deed
in lieu of foreclosure. The Servicer shall be reimbursed for all Servicing
Advances made pursuant to this paragraph with respect to the related Mortgaged
Property from the Custodial Account.
The Servicer shall use its Best Efforts to dispose of the REO Property
as soon as possible and shall sell such REO Property in any event within three
years after title has been taken to such REO Property, unless the Servicer
determines, and gives an appropriate notice to the Trustee at least 90 days
prior to the expiration of the three-year period to such effect, that a longer
period is necessary for the orderly liquidation of such REO Property and the
Servicer has received a grant of extension from the Internal Revenue Service to
the effect that, under the FASIT Provisions, the FASIT may hold REO Property for
a longer period, without adversely affecting the FASIT status of the FASIT or
causing the imposition of a federal tax upon the FASIT. If a period longer than
three years is permitted under the foregoing sentence and is necessary to sell
any REO Property, (i) the Servicer shall report monthly to the Trustee as to the
progress being made in selling such REO Property and (ii) if, with the written
consent of the Trustee, a purchase money mortgage is taken in connection with
such sale, such purchase money mortgage shall name the Servicer as mortgagee,
and such purchase money mortgage shall not be held pursuant to this Agreement,
but instead a separate participation agreement among the Servicer and Trustee
shall be entered into with respect to such purchase money mortgage. If the
Servicer has not received such an extension and the Servicer is unable to sell
the REO Property within 33 months after its acquisition by the FASIT or, if the
Servicer has received such an extension and the Servicer is unable to sell the
REO Property within the period ending three months before the close of the
Extended Period (as defined in the Trust Agreement), the Servicer 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
Servicer) 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.
Notwithstanding anything herein to the contrary, the Servicer shall not be
required to provide financing for the sale of any REO Property.
25
The Servicer shall also maintain on each REO Property fire and hazard
insurance with extended coverage in amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
Subject to the approval of the Trustee as described in this paragraph,
the disposition of REO Property shall be carried out by the Servicer at such
price, and upon such terms and conditions, as the Servicer deems to be in the
best interests of the Trust Fund. Prior to acceptance by the Servicer of an
offer to sell any REO Property, the Servicer shall notify the Trustee of such
offer in writing which notification shall set forth all material terms of said
offer (each a "Notice of Sale"). The Trustee shall be deemed to have approved
the sale of any REO Property unless the Trustee notifies the Servicer in
writing, within two (2) Business Days after its receipt of the related Notice of
Sale, that it disapproves of the related sale, in which case the Servicer shall
not proceed with the sale. With respect to any REO Property, upon a REO
Disposition, the Servicer shall be entitled to retain from REO Disposition
Proceeds a disposition fee equal to $1,250.
The Servicer shall withdraw from the Custodial Account funds necessary
for the proper operation, management and maintenance of the REO Property,
including the cost of maintaining any hazard insurance pursuant to the FNMA
Guides. The Servicer shall make monthly distributions on each Remittance Date to
the Trustee of the net cash flow from the REO Property (which shall equal the
revenues from such REO Property net of the expenses described in this Section
3.15 and of any reserves reasonably required from time to time to be maintained
to satisfy anticipated liabilities for such expenses).
Section 3.16 Real Estate Owned Reports.
Together with the statement furnished pursuant to Section 4.02, the
Servicer shall furnish to the Trustee on or before the Remittance Date each
month a statement with respect to any REO Property covering the operation of
such REO Property for the previous month and the Servicer's efforts in
connection with the sale of such REO Property and any rental of such REO
Property incidental to the sale thereof for the previous month. That statement
shall be accompanied by such other information as the Trustee shall reasonably
request.
26
Section 3.17 MERS.
(a) So long as the Trustee is a member of MERS, the Servicer shall use
its Best Efforts to cause the Trustee to be identified as the owner of each MERS
Mortgage Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
(b) The Servicer shall maintain in good standing its membership in
MERS. In addition, the Servicer shall comply with all rules, policies and
procedures of MERS, including the Rules of Membership, as amended, and the MERS
Procedures Manual, as amended. If the Trustee fails to maintain in good standing
its membership in MERS (to the extent that the requirements for such membership
in MERS do not change without the Trustee's knowledge or, to the extent that the
requirements change such that it is not reasonably practicable for the Trustee
to comply with such requirements), or otherwise elects to terminate its
membership in MERS, the costs associated with termination of such membership
shall be borne by the Trustee.
(c) With respect to all MERS Mortgage Loans serviced hereunder, the
Servicer shall promptly notify MERS as to any transfer of beneficial ownership
of such Mortgage Loans of which the Servicer has notice.
(d) With respect to all MERS Mortgage Loans serviced hereunder, the
Servicer shall notify MERS as to any transfer of servicing pursuant to Section
9.01 within 10 Business Days of such transfer of servicing. The Servicer shall
cooperate with the Trustee, the Master Servicer and any successor servicer to
the extent necessary to ensure that such transfer of servicing is appropriately
reflected on the MERS system.
Section 3.18 Certain Matters Relating to Assistance Loans.
(a) The Servicer will service the Assistance Loans and will cause any
of its sub-servicers to service the Assistance Loans in accordance with prudent
loan servicing practices and standards applicable to loans similar to the
Assistance Loans.
(b) The Servicer shall provide written notice to any Obligor prior to
changing the SBA's current servicing practices with respect to (i) assessment of
late charges, (ii) enforcement of any non-monetary terms and conditions of the
documents in the Assistance Loan Files and (iii) the exercise of other rights
set forth in the documents in the Assistance Loan Files. The Servicer shall have
access to multi-lingual personnel to assist Obligors on an as-needed basis.
(c) Subject to Section 3.01(a), the Servicer shall take all actions to
continue and/or maintain a validly perfected security interest in the
Collateral, including, but not limited to executing and filing financing
statements, amendments to financing statements, continuation statements and
other instruments, all in such manner and in such places as may be required by
law fully to preserve, maintain and protect the interests of the Trustee in the
Assistance Loans and the related Collateral. Notwithstanding the foregoing, the
Servicer shall have no obligation to determine whether or not any security
interest granted under any Assistance Loan was duly made, attached or perfected.
27
ARTICLE IV.
PAYMENTS TO TRUSTEE
Section 4.01 Remittances.
On each Remittance Date the Servicer shall remit by wire transfer of
immediately available funds to the Trustee (i) all amounts deposited in the
Custodial Account as of the close of business on the last day of the related
Collection Period (net of charges against or withdrawals from the Custodial
Account pursuant to Section 3.04), plus (ii) all Monthly Advances, if any, which
the Servicer is obligated to make pursuant to Section 4.04, minus (iv) any
amounts attributable to Principal Prepayments, Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds or REO Disposition Proceeds received after the
applicable Collection Period, which amounts shall be remitted on the following
Remittance Date, together with any additional interest required to be deposited
in the Custodial Account in connection with such Principal Prepayment in
accordance with Section 3.03(vi) and, with respect to Assistance Loans that are
not Simple Interest Assistance Loans, minus (v) any amounts attributable to
Monthly Payments collected but due on a Due Date or Due Dates subsequent to the
first day of the month in which such Remittance Date occurs, which amounts shall
be remitted on the Remittance Date next succeeding the Due Date related to such
Monthly Payment.
With respect to any remittance received by the Trustee after the
Business Day on which such payment was due, the Servicer shall pay to the
Trustee interest on any such late payment at an annual rate equal to the Prime
Rate, adjusted as of the date of each change, plus two (2) percentage points,
but in no event greater than the maximum amount permitted by applicable law.
Such interest shall be deposited in the Custodial Account by the Servicer on the
date such late payment is made and shall cover the period commencing with the
day following such Business Day and ending with the Business Day on which such
payment is made, both inclusive. Such interest shall be remitted along with the
distribution payable on the next succeeding Remittance Date. The payment by the
Servicer of any such interest shall not be deemed an extension of time for
payment or a waiver of any Event of Default by the Servicer.
All remittances required to be made to the Trustee shall be made to the
following wire account or to such other account as may be specified by the
Trustee from time to time:
28
Xxxxx Fargo Bank Minnesota, National Association
Minneapolis, Minnesota
ABA # 000-000-000
Xxxxx Fargo Bank Minnesota, National Association
for further credit to Xxxxx Fargo Bank Minnesota, N.A.
Acct # 0000000000
Account Name: Corporate Trust Clearing
FFC: 12341300, SASCO 2002-AL1
Section 4.02 Statements to Trustee and Each Seller.
Not later than the 15th calendar day (or, if such calendar day is not a
Business Day, the immediately succeeding Business Day) of each month, the
Servicer shall furnish to the Trustee (i) a monthly remittance advice containing
such information in the form of FNMA form 2010 or such other form as shall be
required by the FNMA Guides or by the Trustee as to the accompanying remittance
and the period ending on the last day of the preceding calendar month and (ii)
all such information required pursuant to clause (i) above on a magnetic tape or
other similar media reasonably acceptable to the Trustee. Notwithstanding the
foregoing, the Servicer shall furnish the information in clauses (i) and (ii)
above to the holders of the Class A1 Certificates (so long as the Class A1
Certificates are outstanding) via email to xxxxxx_xxxxxxxxxxxxxx@xxxxxxxxx.xxx
no later than four (4) Business Days prior to each Distribution Date.
In addition, not more than 60 days after the end of each calendar year,
commencing December 31, 2002, the Servicer shall, upon request, furnish to each
Person who was an owner of the Assistance Loans at any time during such calendar
year as required by applicable law or, if not required by applicable law, at the
request of such owner, information as to the aggregate of remittances for the
applicable portion of such year.
Such obligation of the Servicer shall be deemed to have been satisfied
to the extent that substantially comparable information shall be provided by the
Servicer pursuant to any requirements of the Internal Revenue Code as from time
to time are in force.
Beginning with calendar year 2002, the Servicer shall provide the
Trustee with such information concerning the Assistance Loans as is necessary
for the Trustee to prepare any federal income tax return for the Trust Fund or
to provide any required tax information with respect to the Trust Fund, as the
Trustee may reasonably request from time to time.
Section 4.03 Statement from the Trustee.
Not later than the five calendar days (or, if such calendar day is not
a Business Day, the immediately succeeding Business Day) after the end of each
month (commencing on March 31, 2002), the Trustee shall provide the Servicer
with the amount, if any, in the Simple Interest Reserve Fund as of such date.
29
Section 4.04 Monthly Advances by Servicer.
On the Business Day immediately preceding each Remittance Date, the
Servicer shall deposit in the Custodial Account from its own funds or from
amounts held for future distribution, or both, an amount equal to the aggregate
of all Monthly Advances relating to Monthly Payments which were due on the
Assistance Loans during the applicable Collection Period and which were
delinquent at the close of business on the immediately preceding Determination
Date or which were deferred pursuant to Section 3.01; provided, however that the
Servicer shall at no time be required to make Monthly Advances of more than two
(2) months' interest on any unsecured Assistance Loan. The Servicer's obligation
to make such Monthly Advances for any Net Simple Interest Shortfall (to the
extent not offset by a Net Simple Interest Excess and not offset by withdrawals
by the Trustee from the Simple Interest Reserve Fund pursuant to Section 4.05 of
the Trust Agreement) as to any Assistance Loan will continue through the last
Monthly Payment due prior to the payment in full of the Assistance 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
Assistance Loan unless the Servicer deems such Monthly Advances to be
unrecoverable, as evidenced by an Officer's Certificate of the Servicer
delivered to the Trustee and the Holder of the Class A1 Certificates (so long as
the Class A1 Certificates are outstanding).
ARTICLE V.
GENERAL SERVICING PROCEDURES
Section 5.01 Servicing Compensation.
As consideration for servicing the Assistance Loans subject to this
Agreement, the Servicer shall retain (i) the relevant Servicing Fee for each
Assistance Loan remaining subject to this Agreement during any month and (ii)
Ancillary Income. In addition, if at any time the Servicer is the Retained
Interest Holder with respect to any Assistance Loans, then the Servicer, as the
Retained Interest Holder, shall retain an amount equal to the Retained Interest
relating to such Assistance Loans; provided, that (i) the Trustee shall have no
obligation to make payment of the Retained Interest to the Servicer and (ii) the
Servicer's right to retain the Retained Interest is limited to (and the Retained
Interest may only be retained from) the interest portion (including recoveries
with respect to interest from Liquidation Proceeds to the extent permitted by
Section 3.02 of this Agreement) of the Monthly Payments collected by the
Servicer with respect to those Assistance Loans for which payment is in fact
made of the entire amount of the Monthly Payment. The Servicing Fee shall be
payable monthly. The Servicing Fees shall be payable only at the time of and
with respect to those Assistance Loans for which payment is in fact made of the
entire amount of the Monthly Payment or as otherwise provided in Section 3.04.
The obligation of the Trustee to pay the Servicing Fees is limited as provided
in Section 3.04. The aggregate of the Servicing Fees payable to the Servicer for
any month with respect to the Assistance Loans shall be reduced by any
Prepayment Interest Shortfall Amount with respect to such month.
30
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.
Section 5.02 Annual Audit Report.
On or before April 30 of each year, beginning with April 30, 2003, the
Servicer shall, at its own expense, cause a firm of independent public
accountants (who may also render other services to the Servicer), which is a
member of the American Institute of Certified Public Accountants, to furnish to
each Seller (with respect to its related Assistance Loans) and Trustee (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, such firm is of the opinion that Servicer's overall
servicing operations have been conducted in compliance with the Uniform Single
Attestation Program except for such exceptions that, in the opinion of such
firm, the Uniform Single Attestation Program requires it to report, in which
case such exceptions shall be set forth in such statement. Notwithstanding the
foregoing, the Holders of the Class A1 Certificates shall have the right to
access the Servicer's records and financial statements upon reasonable advance
notice to the Servicer.
Section 5.03 Annual Officer's Certificate.
On or before April 30 of each year, beginning with April 30, 2003, the
Servicer, at its own expense, will deliver to each Seller (with respect to its
related Assistance Loans) and the Trustee a Servicing Officer's certificate
stating, as to each signer thereof, that (i) a review of the activities of the
Servicer during such preceding fiscal year and of performance under this
Agreement has been made under such officers' supervision, and (ii) to the best
of such officers' knowledge, based on such review, the Servicer has fulfilled
all its obligations under this Agreement for such year, or, if there has been a
default in the fulfillment of all such obligations, specifying each such default
known to such officers and the nature and status thereof including the steps
being taken by the Servicer to remedy such default. Additionally, the Servicer
shall provide to the Holders of the Class A1 Certificates, an officer's
certificate prior to each Determination Date, with respect to any Realized
Losses.
Section 5.04 Transfers of Mortgaged Property.
The Servicer shall use its best efforts to enforce any "due-on-sale"
provision contained in any Mortgage or Mortgage Note and to deny assumption by
the person to whom the Mortgaged Property has been or is about to be sold
whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains liable on the Mortgage and the Mortgage Note; provided that,
if in the Servicer's prudent business judgment, it determines that an assumption
of the Mortgage Loan is in the best interests of the Trust Fund, it shall
deliver notice of such determination to the Trustee and it may permit such
assumption if approved by the Trustee. When the Mortgaged Property has been
conveyed by the Mortgagor, the Servicer shall, to the extent it has knowledge of
such conveyance, so long as the Trustee has not consented to an assumption in
accordance with the preceding sentence, exercise its rights to accelerate the
maturity of such Mortgage Loan under the "due-on-sale" clause applicable
thereto, provided, however, that the Servicer shall not be required to take such
action if the Servicer, in its prudent business judgment, believes it is not in
the best interests of the Trust Fund and shall not exercise such rights if
prohibited by law from doing so.
31
If the Servicer reasonably believes it is unable under applicable law
to enforce such "due-on-sale" clause or if the Trustee approves such assumption
pursuant to the preceding paragraph, the Servicer shall enter into (i) an
assumption and modification agreement with the person to whom such property has
been conveyed, pursuant to which such person becomes liable under the Mortgage
Note and the original Mortgagor remains liable thereon or (ii) in the event the
Servicer is unable under applicable law to require that the original Mortgagor
remain liable under the Mortgage Note and the Servicer has the prior consent of
the primary mortgage guaranty insurer, a substitution of liability agreement
with the owner of the Mortgaged Property pursuant to which the original
Mortgagor is released from liability and the owner of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage Note; provided
that no such substitutions should be permitted unless such person satisfies the
underwriting criteria of the Servicer and has a credit risk rating at least
equal to that of the original Mortgagor (if known to the Servicer). The Mortgage
Loan, as assumed, shall conform in all respects to the requirements,
representations and warranties of this Agreement. The Servicer shall notify the
Trustee that any such assumption or substitution agreement has been completed by
forwarding to the Trustee a copy of such assumption or substitution agreement
(indicating the Mortgage File to which it relates). The Servicer shall forward
an original copy of such agreement to the Custodian to be held by the Custodian
with the other documents related to such Mortgage Loan. The Servicer shall be
responsible for recording any such assumption or substitution agreements. In
connection with any such assumption or substitution agreement, the Monthly
Payment on the related Mortgage Loan shall not be changed but shall remain as in
effect immediately prior to the assumption or substitution, the Mortgage
Interest Rate, the stated maturity or the outstanding principal amount of such
Mortgage Loan shall not be changed nor shall any required monthly payments of
principal or interest be deferred or forgiven. Any assumption fee collected by
the Servicer for entering into an assumption agreement shall be retained by the
Servicer as additional servicing compensation. In connection with any such
assumption, neither the Mortgage Interest Rate borne by the related Mortgage
Note, the term of the Mortgage Loan nor the outstanding principal amount of the
Mortgage Loan shall be changed.
ARTICLE VI.
REPRESENTATIONS, WARRANTIES
AND AGREEMENTS
Section 6.01 Representations, Warranties and Agreements of the
Servicer.
The Servicer, as a condition to the consummation of the transactions
contemplated hereby, hereby makes the following representations and warranties
to each Seller (with respect to its related Assistance Loans) and the Trustee as
of the Closing Date:
32
(a) Due Organization and Authority. The Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all licenses necessary to carry on its business as now being
conducted and is licensed, qualified and in good standing in each state where
Collateral is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by the
Servicer, and in any event the Servicer is in compliance with the laws of any
such state to the extent necessary to ensure the enforceability of the terms of
this Agreement; the Servicer has the full power and authority to execute and
deliver this Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the Servicer and the
consummation of the transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and enforceable
obligation of the Servicer and all requisite action has been taken by the
Servicer to make this Agreement valid and binding upon the Servicer in
accordance with its terms;
(b) Ordinary Course of Business. The consummation of the transactions
contemplated by this Agreement are in the ordinary course of business of the
Servicer;
(c) No Conflicts. Neither the execution and delivery of this Agreement,
the acquisition of the servicing responsibilities by the Servicer or the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Servicer's organizational
documents or any legal restriction or any agreement or instrument to which the
Servicer is now a party or by which it is bound, or constitute a default or
result in an acceleration under any of the foregoing, or result in the violation
of any law, rule, regulation, order, judgment or decree to which the Servicer or
its property is subject, or impair the ability of the Servicer to service the
Assistance Loans, or impair the value of the Assistance Loans;
(d) Ability to Perform. The Servicer does not believe, nor does it have
any reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Servicer which, either in any
one instance or in the aggregate, may result in any material adverse change in
the business, operations, financial condition, properties or assets of the
Servicer, or in any material impairment of the right or ability of the Servicer
to carry on its business substantially as now conducted, or in any material
liability on the part of the Servicer, or which would draw into question the
validity of this Agreement or of any action taken or to be taken in connection
with the obligations of the Servicer contemplated herein, or which would be
likely to impair materially the ability of the Servicer to perform under the
terms of this Agreement;
(f) No Consent Required. No consent, approval, authorization or order
of any court or governmental agency or body is required for the execution,
delivery and performance by the Servicer of or compliance by the Servicer with
this Agreement;
(g) Ability to Service. The Servicer is an approved seller/servicer of
loans for a United States federal government entity or a government-sponsored
enterprise, with the facilities, procedures, and experienced personnel necessary
for the sound servicing of loans of the same type as the Assistance Loans. The
Servicer is a member in good standing of the MERS system;
33
(h) No Untrue Information. Neither this Agreement nor any statement,
report or other document furnished or to be furnished pursuant to this Agreement
or in connection with the transactions contemplated hereby contains any untrue
statement of fact or omits to state a fact necessary to make the statements
contained therein not misleading; and
(i) No Commissions to Third Parties. The Servicer has not dealt with
any broker or agent or anyone else who might be entitled to a fee or commission
in connection with this transaction other than each Seller (with respect to its
related Assistance Loans).
Section 6.02 Remedies for Breach of Representations and Warranties of
the Servicer.
It is understood and agreed that the representations and warranties set
forth in Section 6.01 shall survive the engagement of the Servicer to perform
the servicing responsibilities as of the Closing Date or Servicing Transfer
Date, as applicable, hereunder and the delivery of the Servicing Files to the
Servicer and shall inure to the benefit of each Seller (with respect to its
related Assistance Loans) and the Trustee. Upon discovery by either the
Servicer, the Trustee or either Seller of a breach of any of the foregoing
representations and warranties 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
Assistance Loans, the Collateral or the priority of the security interest on
such Collateral or the interest of each Seller (with respect to its related
Assistance Loans) or the Trustee, the party discovering such breach shall give
prompt written notice to the other.
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 Assistance Loans, the Collateral or the
priority of the security interest on such Collateral, 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 Assistance Loans) to a successor servicer. Such assignment shall be
made in accordance with Sections 9.01 and 9.03.
In addition, the Servicer shall indemnify each Seller (with respect to
its related Assistance Loans) and hold it 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 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 each Seller (with
respect to its related Assistance Loans) 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
either Seller or the Trustee to the Servicer, (ii) failure by the Servicer to
cure such breach within the applicable cure period, and (iii) demand upon the
Servicer by either Seller or the Trustee for compliance with this Agreement.
34
Section 6.03 Additional Indemnification by the Servicer; Third Party
Claims.
(a) The Servicer shall indemnify each Seller (with respect to its
related Assistance Loans), the Trustee and the Trust Fund and hold them harmless
against any and all costs that the indemnified party may sustain in any way
related to (i) the failure of the Servicer to perform its duties and service the
Assistance Loans in material compliance with the terms of this Agreement or (ii)
the failure of the Servicer to cause any event to occur which requires its "Best
Efforts" under this Agreement.
(b) In addition, the Servicer shall indemnify the Holder of the Class
A1 Certificates (so long as the Class A1 Certificates are outstanding) against
any and all Costs that the Holder of the Class A1 Certificates may sustain in
any way related to the failure of the Servicer to perform its duties and service
the Pool 1 Mortgage Loans in material compliance with the terms of this
Agreement.
(c) The Servicer shall immediately notify each Seller (with respect to
its related Assistance Loans), the Trustee, the Holder of the Class A1
Certificates or any other relevant party if a claim is made by a third party
with respect to this Agreement or the Assistance Loans (the Pool 1 Mortgage
Loans in the case of the Holder of the Class A1 Certificates), 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, promptly
pay, discharge and satisfy any judgment or decree which may be entered against
it or any indemnified party in respect of such claim and follow any written
instructions received from such indemnified party in connection with such claim.
Each indemnified party, as applicable, 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
Assistance Loans in material 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.
ARTICLE VII.
THE SERVICER
Section 7.01 Merger or Consolidation of the Servicer.
The Servicer shall keep in full effect its existence, rights and
franchises as a corporation, and shall obtain and preserve its qualification to
do business as a foreign entity in each jurisdiction in which such qualification
is or shall be necessary to protect the validity and enforceability of this
Agreement or any of the Assistance Loans and to perform its duties under this
Agreement.
Any Person into which the Servicer may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Servicer shall be a party, or any Person succeeding to the business of the
Servicer, shall be the successor of the Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, provided,
however, that the successor or surviving Person shall be an institution (i)
having a net worth of not less than $25,000,000, and (ii) which is a FNMA- or
FHLMC-approved servicer in good standing.
35
Section 7.02 Limitation on Liability of the Servicer and Others.
Neither the Servicer nor any of the directors, officers, employees or
agents of the Servicer shall be under any liability to each Seller (with respect
to its related Assistance Loans) or the Trustee for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Servicer or any such person against any breach of
warranties or representations made herein, or failure to perform its obligations
in strict compliance with any standard of care set forth in this Agreement, or
any liability which would otherwise be imposed by reason of any breach of the
terms and conditions of this Agreement. The Servicer and any director, officer,
employee or agent of the Servicer may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Assistance Loans in accordance with this Agreement and
which in its opinion may involve it in any expense or liability, provided,
however, that the Servicer may, with the consent of the Trustee, undertake any
such action which it may deem necessary or desirable in respect of this
Agreement and the rights and duties of the parties hereto. In such event, the
Servicer shall be entitled to reimbursement from the Trust Fund for the
reasonable legal expenses and costs of such action.
Section 7.03 Limitation on Resignation and Assignment by the Servicer.
Each Seller has entered into this Agreement with the Servicer in
reliance upon the independent status of the Servicer, and the representations as
to the adequacy of its servicing facilities, plant, personnel, records and
procedures, its integrity, reputation and financial standing, and the
continuance thereof. Therefore, the Servicer shall neither assign its rights
under this Agreement or the servicing hereunder nor delegate its duties
hereunder or any portion thereof, or sell or otherwise dispose of all or
substantially all of its property or assets without, in each case, the prior
written consent of each Seller and the Trustee, which consent, in the case of an
assignment of rights or delegation of duties, shall be granted or withheld in
the discretion of each Seller and the Trustee, and which consent, in the case of
a sale or disposition of all or substantially all of the property or assets of
the Servicer, shall not be unreasonably withheld; provided, that in each case,
there must be delivered to the Trustee a letter from each Rating Agency to the
effect that such transfer of servicing or sale or disposition of assets will not
result in a qualification, withdrawal or downgrade of the then-current rating of
any of the Certificates. Notwithstanding the foregoing, the Servicer, without
the consent of either Seller or the Trustee, may retain third party contractors
to perform certain servicing and loan administration functions, including
without limitation, hazard insurance administration, tax payment and
administration, flood certification and administration, collection services and
similar functions; provided, that the retention of such contractors by Servicer
shall not limit the obligation of the Servicer to service the Assistance Loans
pursuant to the terms and conditions of this Agreement.
36
The Servicer shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Servicer, the Trustee and the
Holder of the Class A1 Certificates (so long as the Class A1 Certificates are
outstanding) or upon the determination that its duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Trustee which Opinion of Counsel shall be in form and substance acceptable to
the Trustee. No such resignation shall become effective until a successor shall
have assumed the Servicer's responsibilities and obligations hereunder in the
manner provided in Section 9.01.
Without in any way limiting the generality of this Section 7.03, in the
event that the Servicer either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its duties hereunder or any portion
thereof or sell or otherwise dispose of all or substantially all of its property
or assets, without the prior written consent of each Seller (with respect to its
related Assistance Loans), then either Seller shall have the right to terminate
this Agreement upon notice given as set forth in Section 8.01, without any
payment of any penalty or damages and without any liability whatsoever to the
Servicer or any third party.
Section 7.04 Subservicing Agreements and Successor Subservicer.
(a) The Servicer may enter into subservicing agreements for any
servicing and administration of the Assistance Loans with any institution which
(i) is an approved FNMA seller/servicer and (ii) which represents and warrants
that it is in compliance with the laws of each state as necessary to enable it
to perform its obligations under such subservicing agreement. For this purpose,
subservicing shall not be deemed to include outsourcing routine tasks to third
parties including, but not limited to, taxes, insurance, property inspection,
reconveyance, collection or brokering REO Property. The Servicer shall give
prior written notice to the Trustee of the appointment of any subservicer and
shall furnish to the Trustee a copy of such subservicing agreement. For purposes
of this Agreement, the Servicer shall be deemed to have received payments on
Assistance Loans immediately upon receipt by any subservicer of such payments.
Any such subservicing agreement shall be consistent with and not violate the
provisions of this Agreement. Each subservicing agreement shall provide that a
successor servicer shall have the option to terminate such agreement without
payment of any fees if the predecessor servicer is terminated or resigns.
(b) The Servicer may terminate any subservicing agreement to which it
is a party in accordance with the terms and conditions of such subservicing
agreement and either itself directly service the related Assistance Loans or
enter into a subservicing agreement with a successor subservicer that qualifies
under Section 7.04(a).
(c) Notwithstanding any subservicing agreement or the provisions of
this Agreement relating to agreements or arrangements between the Servicer and a
subservicer or reference to actions taken through a subservicer or otherwise,
the Servicer shall remain obligated and primarily liable to the Trustee and the
Certificateholders for the servicing and administering of the Assistance Loans
in accordance with the provisions hereof without diminution of such obligation
or liability by virtue of such subservicing agreements or arrangements or by
virtue of indemnification from the subservicer and to the same extent and under
the same terms and conditions as if the Servicer alone were servicing and
administering the Assistance Loans. The Servicer shall be entitled to enter into
any agreement with a subservicer for indemnification of the Servicer by such
subservicer and nothing contained in this Agreement shall be deemed to limit or
modify such indemnification.
37
ARTICLE VIII.
TERMINATION
Section 8.01 Termination for Cause.
This Agreement shall be terminable at the option of each Seller (with
respect to its related Assistance Loans) or the Trustee if any of the following
events of default exist on the part of the Servicer:
(i) any failure by the Servicer to remit to the Trustee any
payment required to be made under the terms of this Agreement which continues
unremedied for a period of two Business Days after the date upon which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Trustee; or
(ii) failure by the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Servicer set forth in this Agreement which continues unremedied for a period of
30 days; or
(iii) failure by the Servicer to maintain its license to do
business or service loans in any jurisdiction, if required by such jurisdiction,
where any Collateral is located; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, including bankruptcy,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 days; or
(v) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of its property; or
(vi) the Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of any
applicable insolvency, bankruptcy or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its obligations
or cease its normal business operations for three Business Days; or
(vii) the Servicer ceases to meet the qualifications of a FNMA
seller/servicer; or
38
(viii) the Servicer attempts to assign the servicing of the
Assistance Loans or its right to servicing compensation hereunder or the
Servicer attempts to sell or otherwise dispose of all or substantially all of
its property or assets or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any portion
thereof (to other than a third party in the case of outsourcing routine tasks
including, but not limited to, taxes, insurance, property inspection,
reconveyance, collection or brokering REO Property), in each case without
complying fully with the provisions of Section 7.03.
In each and every such case, so long as an event of default shall not
have been remedied, in addition to whatever rights each Seller (with respect to
its related Assistance Loans) or the Trustee may have at law or equity to
damages, including injunctive relief and specific performance, each Seller (with
respect to its related Assistance Loans) or the Trustee, by notice in writing to
the Servicer, may terminate all the rights and obligations of the Servicer under
this Agreement and in and to the servicing contract established hereby and the
proceeds thereof.
Upon receipt by the Servicer of such written notice, all authority and
power of the Servicer under this Agreement, whether with respect to the
Assistance Loans or otherwise, shall pass to and be vested in a successor
Servicer appointed by the Sellers and the Trustee. Upon written request from the
Sellers, the Servicer shall prepare, execute and deliver to the successor entity
designated by the Sellers 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 Assistance Loans and related documents, at the Servicer's
sole expense. The Servicer shall cooperate with each Seller (with respect to its
related Assistance Loans) and the Trustee and such successor in effecting the
termination of the Servicer'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 Servicer to the
Custodial Account or Escrow Account or thereafter received with respect to the
Assistance Loans.
By a written notice, the Sellers, the Trustee and the Holder of the
Class A1 Certificates (so long as the Class A1 Certificates are outstanding) may
forbear any default by the Servicer in the performance of its obligations
hereunder and its consequences. Upon any waiver of a past default, such default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent thereon
except to the extent expressly so waived.
Section 8.02 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 Assistance Loan to the Trustee (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, (ii) mutual consent of the Servicer, Sellers and the Trustee in
writing or (iii) at the sole discretion of each Seller (with respect to its
related Assistance Loans) (each acting in its capacity as owner of the servicing
rights relating to its Assistance Loans). Any such termination pursuant to
clause (iii) above shall be with 30 days' prior notice, in writing and delivered
to the Trustee and the Servicer by registered mail to the addresses set forth in
Section 9.04 of this Agreement (in the case of the Servicer) or in the Trust
Agreement (in the case of the Trustee). The Servicer shall comply with the
termination procedures set forth in Sections 7.03, 8.01 and 9.01 hereof. The
Trustee shall have no right to terminate the Servicer pursuant to this Section
8.02. In connection with a termination by either Seller (with respect to its
related Assistance Loans) pursuant to clause (iii) of this Section 8.02, the
Servicer shall be reimbursed for all unreimbursed out-of-pocket Servicing
Advances, Monthly Advances and Servicing Fees and other reasonable and necessary
out-of-pocket costs associated with any transfer of servicing at the time of
such transfer of servicing. Any invoices received by the Servicer after
termination will be forwarded to each Seller (with respect to its related
Assistance Loans) or successor servicer for payment within thirty (30) days of
receipt from the Servicer.
39
ARTICLE IX.
MISCELLANEOUS PROVISIONS
Section 9.01 Successor to the Servicer.
Simultaneously with the termination of the Servicer's responsibilities
and duties under this Agreement (a) pursuant to Sections 6.02, 7.03, 8.01 or
8.02(ii), the Trustee shall (i) succeed to and assume all of the Servicer's
responsibilities, rights, duties and obligations under this Agreement, or (ii)
together with the Holder of the Class A1 Certificates (so long as the Class A1
Certificates are outstanding), appoint a successor having the characteristics
set forth in clauses (i) and (ii) of Section 7.01 and which shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Servicer under this Agreement simultaneously with the termination of the
Servicer's responsibilities, duties and liabilities under this Agreement; or (b)
pursuant to a termination under Section 8.02(iii), the Holder of the Class A1
Certificates (so long as the Class A1 Certificates are outstanding and the
Sellers thereafter), shall appoint a successor having the characteristics set
forth in clauses (i) and (ii) of Section 7.01 and which shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Servicer under this Agreement simultaneously with the termination of the
Servicer's responsibilities, duties and liabilities under this Agreement. Any
successor to the Servicer shall be subject to the approval of the Trustee, shall
be a member in good standing of the MERS system (if any of the Mortgage Loans
are MERS Eligible Mortgage Loans, unless such Mortgage Loans are withdrawn from
MERS and Assignments are recorded in favor of the Trustee at the expense of the
successor Servicer). Any approval of a successor servicer by the Trustee, shall,
if the successor servicer is not at that time a servicer of other Assistance
Loans for the Trust Fund, be conditioned upon the receipt by the Trustee of a
letter from each Rating Agency 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 Sellers may make such arrangements for the compensation of such
successor out of payments on Assistance 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 9.01 and
shall in no event relieve the Servicer of the representations and warranties
made pursuant to Sections 6.01 and the remedies available to each Seller (with
respect to its related Assistance Loans) under Section 6.02 and 6.03, it being
understood and agreed that the provisions of such Sections 6.01, 6.02 and 6.03
shall be applicable to the Servicer notwithstanding any such resignation or
termination of the Servicer, or the termination of this Agreement. No successor
servicer shall be responsible for the lack of information and/or documents that
are not transferred to it by the Servicer and that it cannot otherwise obtain
through reasonable efforts.
40
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, including but not limited to the transfer and
endorsement of the Promissory Notes or Mortgage Notes and related documents, and
the preparation and recordation of Assignments. The Servicer shall cooperate
with the Trustee or each Seller (with respect to its related Assistance Loans),
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 Escrow
Account or thereafter received with respect to the Assistance Loans.
Any successor appointed as provided herein shall execute, acknowledge
and deliver to the Trustee, the Servicer and each Seller (with respect to its
related Assistance Loans) an instrument (i) accepting such appointment, wherein
the successor shall make the representations and warranties set forth in Section
6.01 (including a representation that the successor servicer is a member of
MERS, unless none of the Mortgage Loans are MERS Mortgage Loans or MERS Eligible
Mortgage Loans or any such Mortgage Loans have been withdrawn from MERS and
Assignments are recorded in favor of the Trustee) 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 6.02, 7.03, 8.01 or 8.02 shall not affect any claims that 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. In addition, in the event
any successor servicer is appointed pursuant to Section 8.02(iii) of this
Agreement, such successor servicer must satisfy the conditions relating to the
transfer of servicing set forth in the Trust Agreement.
The Servicer shall deliver promptly to the successor servicer the funds
in the Custodial Account and Escrow Account and all documents in the Assistance
Loan File 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 each Seller (with respect to its related Assistance
Loans) of such appointment in accordance with the procedures set forth in
Section 9.04.
41
Section 9.02 Purchase of the Assistance Loans.
(a) On any Distribution Date occurring after the date on which the
aggregate Principal Balance of the Assistance Loans is less than 5% of the
Cut-off Date aggregate Principal Balance, the Servicer may cause (i) the Trustee
to sell (or arrange for the sale of) the assets of the Trust Fund to the
Servicer and (ii) the Trust Fund to adopt a plan of complete liquidation
pursuant to Section 7.03(a) of the Trust Agreement to sell all of its property.
(b) If the Servicer elects not to purchase the assets of the Trust Fund
pursuant to Section 9.02(a) hereof, the Holders of the Class A1 Certificates may
purchase the Mortgage Loans in Pool 1, subject to (and as further described in)
Section 7.01 of the Trust Agreement.
(c) If, on the Distribution Date immediately preceding the Maturity
Date (as defined in the Trust Agreement) any Certificates remain outstanding
(taking into account the distribution made on such Distribution Date), the
Servicer shall purchase all of the assets of the Trust Fund within 5 Business
Days of such Distribution Date.
(d) With respect to any purchase pursuant to Section 9.02(a) or (c)
hereof, the Servicer shall purchase the property of the Trust Fund at a price
equal to the Termination Price (as defined in the Trust Agreement) of such
property.
Section 9.03 Costs.
Each Seller (with respect to its related Assistance Loans) shall pay
any legal fees and expenses of its attorneys. Costs and expenses incurred in
connection with the transfer of the servicing responsibilities, including fees
for delivering Servicing Files, shall be paid by each Seller (with respect to
its related Assistance Loans). Subject to Sections 2.02 and 3.01(a), the
Depositor shall pay the costs associated with the preparation, delivery and
recording of Assignments.
Section 9.04 Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if sent by facsimile or mailed by
overnight courier, addressed as follows (or such other address as may hereafter
be furnished to the other party by like notice):
(i) if to each Seller:
Xxxxxx Capital, A Division of
Xxxxxx Brothers Holdings Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Manager, Contract Finance
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Xxxxxx Brothers Bank, F.S.B.
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Contract Finance--Xxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(ii) if to the Servicer:
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
42
with a copy to:
Aurora Loan Services Inc.
000 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Manager, Loan Administration
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(iii) if to the Trustee:
Xxxxx Fargo Bank Minnesota, National Association
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (SASCO 2002-AL1)
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services (SASCO 2002-AL1)
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(iv) if to the Holder of the Class A1 Certificates:
Federal National Mortgage Association
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Director of Lender Administration
Telecopier No.: (000) 000-0000
With a copy to:
Federal National Mortgage Association
0000 Xxxxxxxxx Xxxxxx, X.X.
Mail Stop 2H-3S/12
Xxxxxxxxxx, X.X. 00000
Attention: Bond Administration
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
43
(v) if to the Holder of the Class A Certificates pursuant
to Section 3.01 herein:
Federal National Mortgage Association
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Vice President--Loss Mitigation
Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee. Notwithstanding any other provision herein, any party providing any
notice required to be delivered pursuant to the provisions herein shall also
send a copy of such notice to the Holders of the Class A1 Certificates so long
as the Class A1 Certificates are outstanding.
Section 9.05 Severability Clause.
Any part, provision, representation or warranty of this Agreement which
is prohibited or which is held to be void or unenforceable shall be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or warranty of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Assistance Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is as close as possible to the economic effect of this Agreement
without regard to such invalidity.
Section 9.06 No Personal Solicitation.
From and after the Closing Date, the Servicer hereby agrees that it
will not take any action or permit or cause any action to be taken by any of its
agents or affiliates, or by any independent contractors on the Servicer's
behalf, to personally, by telephone or mail, solicit the borrower or obligor
under any Assistance Loan (on a targeted basis) for any purposes of prepayment,
refinancing or modification of the related Assistance Loan, provided, however,
that this limitation shall not prohibit Servicer from soliciting such Obligor
for purposes of prepayment, refinance or modification of any loan owned or
serviced by Servicer other than a Assistance Loan. It is understood and agreed
that, among other marketing activities, promotions undertaken by Servicer which
are directed of the general public at large or which are directed generally to a
segment of the then existing customers of Servicer or any of its direct or
indirect subsidiaries (including, without limitation, the mailing of promotional
materials to Servicer's deposit customers by inserting such materials into
customer account statements, mass mailings based on commercially acquired
mailing lists and newspaper, radio and television advertisements) shall not
constitute solicitation under this section. In the event the Servicer does
refinance any Assistance Loan as a result of a violation of the requirements set
forth in this Section 9.06, Servicer hereby agrees to pay to the Trust Fund an
amount equal to the difference, if any, between the amount that the Trust Fund
would have received if it had sold the Assistance Loan to a third party, and the
proceeds received by the Trust Fund as a result of such refinancing.
44
Section 9.07 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 9.08 Place of Delivery and Governing Law.
This Agreement shall be deemed in effect when a fully executed
counterpart thereof is received by each Seller in the State of New York and
shall be deemed to have been made in the State of New York. THIS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING
NEW YORK OR OTHER CHOICE OF LAW RULES TO THE CONTRARY.
Section 9.09 Further Agreements.
Each Seller (with respect to its related Assistance Loans) and the
Servicer each agree to execute and deliver to the other such reasonable and
appropriate additional documents, instruments or agreements as may be necessary
or appropriate to effectuate the purposes of this Agreement.
Section 9.10 Intention of the Parties.
It is the intention of the parties that each Seller (with respect to
its related Assistance Loans) is conveying, and the Servicer is receiving only a
contract for servicing the Assistance Loans. Accordingly, the parties hereby
acknowledge that the Trust Fund remains the sole and absolute owner of the
Assistance Loans and all rights (other than the servicing rights) related
thereto.
Section 9.11 Successors and Assigns; Assignment of Servicing Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Servicer, each Seller (with respect to its related Assistance
Loans) and the Trustee and their respective successors and assigns. This
Agreement shall not be assigned, pledged or hypothecated by the Servicer to a
third party except in accordance with Section 7.03.
Section 9.12 Assignment by the Sellers.
Each Seller (with respect to its related Assistance Loans) shall have
the right, upon notice to but without the consent of the Servicer, to assign, in
whole or in part, its interest under this Agreement to the Depositor, which in
turn shall assign such rights to the Trustee, and the Trustee then shall succeed
to all rights of each Seller (with respect to its related Assistance Loans)
under this Agreement. All references to each Seller in this Agreement shall be
deemed to include each Seller's assignee or designee and any subsequent assignee
or designee, specifically including the Trustee, except with respect to each
Seller's (with respect to its related Assistance Loans) retained servicing
rights pursuant to Section 8.02(iii).
Each Seller (with respect to its related Assistance Loans) shall have
the right, upon notice to but without the consent of the Servicer, to assign, in
whole or in part, its retained servicing rights. All references to each Seller
(with respect to its related Assistance Loans) in this Agreement, in each
Seller's capacity as an owner of servicing rights, shall be deemed to include
the assignee or designee and any subsequent assignee or designee, of each
Seller's rights (with respect to its related Assistance Loans) arising pursuant
to Section 8.02(iii)
45
Section 9.13 Waivers.
No term or provision of this Agreement may be waived or modified unless
such waiver or modification is in writing and signed by the party against whom
such waiver or modification is sought to be enforced.
Section 9.14 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
Section 9.15 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular, and the
use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) a reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean by reason of
enumeration.
Section 9.16 Reproduction of Documents.
This Agreement and all documents relating thereto, including, without
limitation, (i) consents, waivers and modifications which may hereafter be
executed, (ii) documents received by any party at the closing, and (iii)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
46
IN WITNESS WHEREOF, the Servicer and each Seller have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.,
as a Seller
By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Authorized Signatory
XXXXXX BROTHERS BANK, F.S.B.,
as a Seller
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
AURORA LOAN SERVICES INC.,
as Servicer
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
Acknowledged By:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Vice President
EXHIBIT A
ASSISTANCE LOAN SCHEDULE
A-1
EXHIBIT B
CUSTODIAL ACCOUNT LETTER AGREEMENT
_______ __, 20__
To: ___________________________
_______________________________
_______________________________
(the "Depository")
As Servicer under the Servicing Agreement, dated as of February 1, 2002
(the "Agreement"), we hereby authorize and request you to establish an account,
as a Custodial Account pursuant to Section 3.03 of the Agreement, to be
designated as "Aurora Loan Services Inc., in trust for the Trustee for
Structured Asset Securities Corporation 2002-AL1." All deposits in the account
shall be subject to withdrawal therefrom by order signed by the Servicer. This
letter is submitted to you in duplicate. Please execute and return one original
to us.
AURORA LOAN SERVICES INC.
By:_______________________________________
Name:
Title:
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number __________, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above.
__________________________________________
Depository
By:_______________________________________
Name:
Title:
Date:
B-2
EXHIBIT C
ESCROW ACCOUNT LETTER AGREEMENT
_______ __, 20__
To: ___________________________
_______________________________
_______________________________
(the "Depository")
As Servicer under the Servicing Agreement, dated as of February 1, 2002
(the "Agreement"), we hereby authorize and request you to establish an account,
as an Escrow Account pursuant to Section 3.05 of the Agreement, to be designated
as "Aurora Loan Services Inc., in trust for the Trustee for Structured Asset
Securities Corporation 2002-AL1." All deposits in the account shall be subject
to withdrawal therefrom by order signed by the Servicer. This letter is
submitted to you in duplicate. Please execute and return one original to us.
AURORA LOAN SERVICES INC.
By:_______________________________________
Name:
Title:
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number __________, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above.
__________________________________________
Depository
By:_______________________________________
Name:
Title:
Date:
C-1
