SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement"), entered into as of the 1st day
of February, 1999, by and between XXXXXX CAPITAL, A DIVISION OF XXXXXX BROTHERS
HOLDINGS INC., a Delaware corporation ("Xxxxxx Capital"), and AURORA LOAN
SERVICES INC., a Delaware corporation ("the Servicer"), recites and provides as
follows:
RECITALS
WHEREAS, Xxxxxx Capital has conveyed certain Mortgage Loans identified on
Schedule I hereto (the "Serviced Mortgage Loans") on a servicing-retained basis
to Structured Asset Securities Corporation ("SASCO"), which in turn has conveyed
the Serviced Mortgage Loans to The Chase Manhattan Bank, as trustee (the
"Trustee") under a trust agreement dated as of February 1, 1999 (the "Trust
Agreement"), among the Trustee, Aurora Loan Services Inc., as master servicer
("Aurora," and together with any successor Master Servicer appointed pursuant to
the provisions of the Trust Agreement, the "Master Servicer") and SASCO.
WHEREAS, Xxxxxx Capital continues to own the servicing rights to the
Serviced Mortgage Loans, and may freely transfer such rights, subject to the
terms hereof.
WHEREAS, Xxxxxx Capital desires that the Servicer service the Serviced
Mortgage Loans, and the Servicer has agreed to do so, subject to the right of
Xxxxxx Capital to terminate the rights and obligations of the Servicer hereunder
at any time and to the other conditions set forth herein.
WHEREAS, Aurora, acting as Master Servicer, and any successor Master
Servicer shall be obligated, among other things, to supervise the servicing of
the Serviced Mortgage Loans on behalf of the Trustee, and shall have the right,
under certain circumstances, to terminate the rights and obligations of the
Servicer under this Servicing Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Xxxxxx Capital and the Servicer hereby agree as
follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this Agreement,
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including Exhibit A hereto and any provisions of the Flow Servicing Agreement
dated as of September 1, 1997, between Xxxxxx Capital and the Servicer (the
"Flow Servicing Agreement") incorporated by reference herein, shall have the
meanings ascribed to such terms in the Trust Agreement.
2. Servicing. The Servicer agrees, with respect to the Serviced Mortgage
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Loans, to perform and observe the duties, responsibilities and obligations that
are to be performed and observed under the provisions of the Flow Servicing
Agreement, except as otherwise provided herein and on Exhibit A hereto, and that
the provisions of the Flow Servicing Agreement, as so modified, are and shall be
a part of this Agreement to the same extent as if set forth herein in full.
3. Master Servicing; Termination of Servicer. The Servicer, including any
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successor servicer hereunder, shall be subject to the supervision of the Master
Servicer, which Master Servicer shall be obligated to ensure that the Servicer
services the Serviced Mortgage Loans in accordance with the provisions of this
Agreement. The Master Servicer, acting on behalf of the Trustee pursuant to the
Trust Agreement, shall have the same rights as the "Owner" (as defined in the
Flow Servicing Agreement) to enforce the obligations of the Servicer under the
Flow Servicing Agreement. In addition, all of the representations, warranties,
covenants, agreements and indemnities made by the Servicer (or by any successor
servicer) to the "Owner" under the Flow Servicing Agreement are hereby deemed
made to the Master Servicer as if the Master Servicer were the "Owner" and all
such representations, warranties, covenants, agreements and indemnities shall
inure to the benefit of the Master Servicer; provided, however, that
notwithstanding the foregoing, the Master Servicer shall have (i) no right or
interest in the "Reconstituted Termination Fee" referred to in Section 7.06 of
the Flow Servicing or the "Additional Remittance" referred to in Section 7.07 of
the Flow Servicing Agreement and (ii) no right to terminate the Servicer, except
as expressly set forth herein. Nothing contained herein is intended to result in
the creation or assumption by the Master Servicer of any obligation of the
"Owner" or any Person under the Flow Servicing Agreement or any other agreement
or instrument relating thereto except as specifically set forth herein. The
Master Servicer shall be entitled to terminate the rights and obligations of the
Servicer under this Agreement upon the failure of the Servicer to perform any of
its obligations under this Agreement, as provided in Article IX of the Flow
Servicing Agreement.
In addition, in the event that Xxxxxx Capital transfers the servicing
rights in respect of the Serviced Mortgage Loans to one or more successor
servicers, the rights and obligations of the Servicer under this Agreement shall
terminate, at the sole option of Xxxxxx Capital, without cause, upon thirty days
written notice to the Servicer, and each successor servicer shall succeed to the
rights and obligations of the Servicer under this Agreement as of such date.
Upon such termination the terminated Servicer shall not be entitled to the
Reconstituted Servicing Fee or any portion thereof, or, except as provided in
the Flow Servicing Agreement, to any other amounts in respect of the Serviced
Mortgage Loans.
The Servicer agrees that, notwithstanding anything to the contrary in the
Flow Servicing Agreement, Xxxxxx Capital is the sole owner of the servicing
rights relating to the Serviced Mortgaged Loans, and the Servicer shall have no
right to transfer the servicing thereof.
4. No Representations. Neither the Servicer nor the Master Servicer shall
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be obligated or required to make any representations and warranties regarding
the Serviced Mortgage Loans in connection with the transactions contemplated by
the Trust Agreement and issuance of the certificates issued pursuant thereto.
5. Notices. All notices and communications between or among the parties
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hereto shall be in writing and shall be deemed received or given when mailed
first-class mail, postage prepaid, addressed to each other party at its address
specified below. Each party may designate to the other parties in writing, from
time to time, other addresses to which notices and communications hereunder
shall be sent.
6. Governing Law. THIS SERVICING AGREEMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING
NEW YORK OR OTHER CHOICE OF LAW RULES TO THE CONTRARY.
7. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
8. Reconstitution. Xxxxxx Capital and the Servicer agree that this
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Agreement is a Reconstitution Agreement, and that the date hereof is the
Reconstitution Date, each as defined in the Flow Servicing Agreement.
9. Notices and Remittances to the Master Servicer. All notices required to
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be delivered to the Owner or the Master Servicer under this Agreement shall be
delivered to the Master Servicer at the following address:
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx
Attn: Master Servicing Department, SASCO 1999-ALS1
All remittances required to be made to the Master Servicer under this
Agreement shall be made to the following wire account:
The Chase Manhattan Bank
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc. Master Servicing Payment
Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO 1999-ALS1
10. Errors and Omissions Insurance. The Servicer shall keep in force during
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the term of this Agreement a fidelity bond and a policy or policies of insurance
covering errors and omissions in the performance of the Servicer's obligations
under this Agreement. Such fidelity bond and policy or policies 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 Master Servicer a copy of each such bond and insurance policy if (i) the
Master Servicer so requests and (ii) the Servicer is not an affiliate of Xxxxxx
Brothers Inc. at the time of such request.
11. Annual Audit Report. On or before April 30 of each year, beginning with
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April 30, 2000, Servicer shall cause a firm of independent public accountants
(who may also render other services to Servicer), which is a member of the
American Institute of Certified Public Accountants, to furnish a statement to
Owner and Master Servicer, to the effect that such firm has examined certain
documents and records for the preceding fiscal year (or during the period from
the date of commencement of such servicer's duties hereunder until the end of
such preceding fiscal year in the case of the first such certificate) and that,
on the basis of such examination conducted substantially in compliance with the
Uniform Single Attestation Program for Mortgage Bankers, such firm is of the
opinion that Servicer's overall servicing operations have been conducted in
compliance with the Uniform Single Attestation Program for Mortgage Bankers
except for such exceptions that, in the opinion of such firm, the Uniform Single
Attestation Program for Mortgage Bankers requires it to report, in which case
such exceptions shall be set forth in such statement.
12. Annual Officer's Certificate. On or before April 30 of each year,
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beginning with April 30, 2000, the Servicer, at its own expense, will deliver to
the Owner and Master Servicer a Servicing Officer's certificate stating, as to
each signer thereof, that (i) a review of the activities of the Servicer during
such preceding fiscal year and of performance under this Agreement has been made
under such officers' supervision, and (ii) to the best of such officers'
knowledge, based on such review, the Servicer has fulfilled all its obligations
under this Agreement for such year, or, if there has been a default in the
fulfillment of all such obligations, specifying each such default known to such
officers and the nature and status thereof including the steps being taken by
the Servicer to remedy such default.
Executed as of the day and year first above written.
XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.
By: /s/Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
AURORA LOAN SERVICES INC.
By: /s/Xxx X. Xxxxxxxx, Xx.
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Name: Xxx X. Xxxxxxxx, Xx.
Title: Executive Vice President
EXHIBIT A
Modifications to the Flow Servicing Agreement
1. The following is hereby added immediately following the words "incidental
fees and charges" in the definition of "Ancillary Income" in Article I: ",
but not including any premium or penalty associated with a prepayment of
principal of a Mortgage Loan."
2. The definition of "Custodial Agreement" in Article I is hereby deleted and
replaced with the following:
"The custodial agreements relating to custody of the Serviced Mortgage
Loans among: (i) LaSalle National Bank, as Custodian, The Chase Manhattan
Bank, as Trustee, and Structured Asset Securities Corporation and (ii) U.S.
Bank Trust National Association, as Custodian, The Chase Manhattan Bank, as
Trustee, and Structured Asset Securities Corporation, each dated as of
February 1, 1999."
3. The definition of "Custodian" in Article I is hereby deleted and replaced
with the following:
"Either of LaSalle National Bank, as Custodian pursuant to a Custodial
Agreement, and any successor thereto, or U.S. Bank Trust National
Association, as Custodian pursuant to a Custodial Agreement, and any
successor thereto, as applicable."
4. The following definition is hereby added:
"MERS Eligible Mortgage Loan: Any Mortgage Loan that has been
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designated by the Servicer as recordable in the name of MERS."
5. The definition of "Monthly Advance" in Article I is hereby amended by
adding at the end of such definition the following: ", but only to the
extent that such amount is expected, in the reasonable judgment of the
Servicer, to be recoverable from collections or other recoveries in respect
of such Mortgage Loan."
6. The following definition is hereby added:
"Non-MERS Eligible Mortgage Loan: Any Mortgage Loan other than a MERS
--------------------------------
Eligible Mortgage Loan."
7. The following definition is hereby added:
"Prepayment Interest Excess Amount: With respect to any Principal
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Prepayment in full of a Mortgage Loan received from the first day through
the sixteenth day of any calendar month, all amounts paid in respect of
interest on such Principal Prepayment."
8. The definition of "Prepayment Interest Shortfall Amount" is hereby deleted
and replaced with the following:
"Prepayment Interest Shortfall Amount: With respect to (x) any
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Principal Prepayment in part (other than any such prepayment received on
the first of the month) and (y) any Principal Prepayment in full received
on or after the seventeenth day of the month preceding the month of such
Distribution Date, but on or before the last day of the month preceding the
month of such Distribution Date, the difference between (i) one full
month's interest at the applicable Mortgage Rate (giving effect to any
applicable Relief Act Reduction), as reduced by the Reconstituted Servicing
Fee, on the outstanding principal balance of such Mortgage Loan immediately
prior to such prepayment and (ii) the amount of interest actually received
with respect to such Mortgage Loan in connection with such Principal
Prepayment."
9. The following definition is hereby added:
"Prepayment Period: With respect to any Distribution Date and a
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partial Principal Prepayment, the period from the second day of the month
preceding the month of such Distribution Date to the first day of the month
of such Distribution Date. With respect to any Distribution Date and a full
Principal Prepayment, the period from the seventeenth day of the month
preceding the month of such Distribution Date to the sixteenth day of the
month of such Distribution Date."
10. The definition of "Qualified Depository" in Article I is hereby deleted and
replaced with the following:
"Any of (i) a depository the accounts of which are insured by the FDIC
and the debt obligations of which are rated AA or better by Fitch and S&P;
(ii) the corporate trust department of any bank the debt obligations of
which are rated at least A-1 or its equivalent by each of Fitch and S&P; or
(iii) the Servicer, unless the Master Servicer is notified by either Fitch
or S&P that the designation of the Servicer as a Qualified Depository will
result in a qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates."
11. The following definition is hereby added:
"Reconstituted Servicing Fee: An amount equal to (1) one-twelfth the
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product of (a) a rate per annum equal to 0.30% and (b) the outstanding
principal balance of such Mortgage Loan and (2) any Prepayment Interest
Excess Amounts. The obligation of the Master Servicer to pay the
Reconstituted Servicing Fee is limited to, and the Reconstituted 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, or as otherwise provided under this Agreement."
12. The definition of "Remittance Date" in Article I is hereby deleted and
replaced with the following:
"The 18th day (or if such 18th day is not a Business Day, the first
Business Day immediately preceding) of any month, following the First
Remittance Date."
13. The definition of "Servicing Fee" in Article I is hereby deleted.
14. Section 2.02 is hereby deleted and replaced with the following paragraphs:
"Section 2.02 Books and Records.
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(a) Subject to Section 3.01(a) hereof, as soon as practicable after
the Closing Date (but in no event more than 90 days thereafter except to
the extent delays are caused by the applicable recording office), the
Servicer, at the expense of the Depositor, shall cause the Mortgage, 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.
(b) Record title to each Non-MERS Eligible Mortgage Loan and the
related Mortgage Note shall be in the name of the Trustee. Subject to
Section 3.01(a) hereof, Assignments of Mortgage shall be recorded as to
each Non-MERS Mortgage Loan 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 (but in
no event more than 90 days thereafter except to the extent delays are
caused by 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 Non-MERS Eligible Mortgage Loans are recorded each
Assignment of Mortgage. Additionally, the Servicer shall prepare and
execute, at the direction of the Trustee, any note endorsements.
(c) All rights arising out of the Mortgage Loans shall be vested in
the Trustee. All funds received on or in connection with a Mortgage Loan
shall be received and held by the Servicer in trust for the benefit of the
Trustee pursuant to the terms of this Agreement."
15. Section 3.01(a) is hereby deleted and replaced with the following
paragraph:
"(a) The Servicer shall (A) record or cause to be recorded the
Mortgage, with respect to all MERS Eligible Mortgage Loans, in the name of
MERS, or shall ascertain that such have previously been so recorded; (B)
prepare or cause to be prepared all Assignments of Mortgage with respect to
all Non-MERS Eligible Mortgage Loans; (C) record or cause to be recorded,
subject to Section 2.02(b) hereof, all Assignments of Mortgage with respect
to Non-MERS Mortgage Loans in the name of the Trustee; (D) pay the
recording costs pursuant to Section 2.02 hereof; and/or (E) track such
Assignments of Mortgage to ensure they have been recorded. 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 it
incurred hereunder."
16. The fourth and fifth paragraphs of Section 3.01 are hereby deleted and
replaced with the following paragraph:
"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 Mortgage Loans. The Servicer shall
not make any future advances to any obligor under any Mortgage Loan, and
(unless the Mortgagor is in default with respect to the Mortgage 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
Mortgage Loan, including any modification that would change the Mortgage
Interest Rate, defer or forgive the payment of principal or interest,
reduce or increase the outstanding principal balance (except for actual
payments of principal) or change the final maturity date on such Mortgage
Loan. In the event of any such modification which permits the deferral of
interest or principal payments on any Mortgage 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 4.03, in an amount equal to the
difference between (a) such month's principal and one month's interest at
the Remittance Rate on the unpaid principal balance of such Mortgage Loan
and (b) the amount paid by the Mortgagor. The Servicer shall be entitled to
reimbursement for such advances to the same extent as for all other
advances made pursuant to Section 4.03. 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 Master
Servicer, all instruments of satisfaction or cancellation, or of partial or
full release, discharge and all other comparable instruments, with respect
to the Mortgage Loans and with respect to the Mortgaged Properties. Upon
the request of the Servicer, the Master Servicer 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 Master Servicer,
necessary or appropriate to enable the Servicer to carry out its servicing
and administrative duties under this Agreement.
Notwithstanding anything to the contrary in this Agreement, the
Servicer shall not waive any premium or penalty in connection with a
prepayment of principal of any Mortgage Loan, and shall not consent to the
modification of any Mortgage Note to the extent that such modification
relates to payment of a prepayment premium or penalty."
17. The words "Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings Inc.,
owner of residential Mortgage Loans, Group No. 1997-ALSI, and various
Mortgagors" in the first paragraph of Section 3.03 are hereby deleted and
replaced with the following: "Aurora Loan Services Inc., as master servicer
for SASCO 1999-ALS1."
18. Section 3.04 is amended by deleting the word "and" at the end of clause
(v), replacing the period at the end of clause (vi) with "; and", and
adding the following immediately following clauses (vii) and (viii):
"(vii) to reimburse itself for Monthly Advances of the Servicer's
funds made pursuant to Section 7.03, 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;
(viii) to reimburse itself for unreimbursed Servicing Advances, and
for any unpaid Reconstituted Servicing Fees, the Servicer's right to
reimburse itself pursuant to this subclause (viii) with respect to any
Mortgage 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 Mortgagor or otherwise relating
to the Mortgage Loan, it being understood that, in the case of any such
reimbursement, the Servicer's right thereto shall be prior to the rights of
the Purchaser;"
19. The words "Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings Inc.,
owner of residential Mortgage Loans, Group No. 1997-ALSI, and various
Mortgagors" in the first paragraph of Section 3.05 are hereby deleted and
replaced with the following: "Aurora Loan Services Inc., as master servicer
for SASCO 1999-ALS1."
20. All references in Section 3.11 to the disposition of REO Properties within
a two year period are hereby deleted and replaced with a three year period.
21. The following Section 3.13 is hereby added:
"Section 3.13 MERS.
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(a) The Servicer shall take such actions as are necessary to cause the
Trustee to be clearly 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.
(c) With respect to all MERS Mortgage Loans serviced hereunder, the
Servicer shall promptly notify MERS as to any transfer of beneficial
ownership or release of any security interest in such Mortgage Loans.
(d) With respect to all MERS Mortgage Loans serviced hereunder, the
Servicer shall notify MERS as to any transfer of servicing pursuant to
Section 10.01 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."
22. The first paragraph of Section 4.01 is hereby deleted and replaced with the
following:
"On each Remittance Date the Servicer shall remit by wire transfer of
immediately available funds to the Master Servicer (a) all amounts
deposited in the Custodial Account as of the close of business on the last
day of the related Due Period (net of charges against or withdrawals from
the Custodial Account pursuant to Section 3.04), plus (b) all amounts, if
any, which the Servicer is obligated to distribute pursuant to Section
7.03, minus (c) any amounts attributable to Principal Prepayments,
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds or REO
Disposition Proceeds received after the applicable Prepayment 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
7.03, and minus (d) any amounts attributable to Monthly Payments collected
but due on a due date or 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 Period for such amounts."
23. Section 4.02 is hereby amended by deleting the words "Remittance Date" in
the first line of such Section, and substituting the following: "eleventh
Business Day of each month"
24. The third paragraph of Section 5.01 is hereby deleted.
25. Section 5.02 is hereby deleted.
26. All references to the "Servicing Fee" (other than the definition of
"Servicing Fee" in Article I) shall be deemed to refer to the
"Reconstituted Servicing Fee" pursuant to Section 7.03.
27. The following paragraph is added at the end of Section 10.01:
"Neither the Master Servicer nor any successor servicer (including the
Owner and the Master Servicer) shall be liable for any acts or omissions of
the Servicer or any predecessor servicer. In particular, neither the Master
Servicer nor any successor servicer (including the Owner and the Master
Servicer) shall be liable for any servicing errors or interruptions
resulting from any failure of the Servicer to maintain computer and other
information systems that are year-2000 compliant."
28. The following words are hereby added after the words "Attention: Xxxx
Xxxxx" in Section 10.06(ii):
"with a copy to:
Aurora Loan Services Inc.
000 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxx X. Xxxxxxxx, Xx."
