EXECUTION
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered
into as of the 1st day of July, 2000, by and between XXXXXX CAPITAL, A
DIVISION OF XXXXXX BROTHERS HOLDINGS INC., a Delaware corporation ("Xxxxxx
Capital"), and GREENPOINT MORTGAGE FUNDING INC., a California corporation (the
"Servicer"), having an office at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000, recites and provides as follows:
RECITALS
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Bank"), an affiliate of
Xxxxxx Capital, acquired from the Servicer certain conventional, residential,
fixed rate, first lien mortgage loans pursuant to a Mortgage Loan Purchase and
Warranties Agreement ("Purchase Agreement"), dated as of January 26, 2000.
WHEREAS, such mortgage loans are currently being serviced by the
Servicer for the Bank pursuant to a Flow Interim Servicing Agreement (the
"Flow Agreement"), dated as of January 26, 2000 and annexed as Exhibit B
hereto, by and between Bank, as owner of such mortgage loans, and the
Servicer, as servicer.
WHEREAS, pursuant to an Assignment, Assumption and Recognition
Agreement, dated as of July 28, 2000 (the "Assignment, Assumption and
Recognition Agreement") and annexed as Exhibit C hereto, Xxxxxx Capital
acquired from the Bank all of the Bank's right, title and interest in and to
certain of the mortgage loans currently serviced under the Flow Agreement
(hereinafter, the "Mortgage Loans") and assumed for the benefit of each of the
Servicer and the Bank the obligations of the Bank under such Flow Agreement.
WHEREAS, Xxxxxx Capital has conveyed certain of the Mortgage Loans as
identified on Schedule I hereto (the "Serviced Mortgage Loans") to Structured
Asset Securities Corporation, a Delaware special purpose corporation
("SASCO"), which in turn has conveyed the Serviced Mortgage Loans to Bank One,
National Association (the "Trustee"), pursuant to a trust agreement dated as
of July 1, 2000 (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"), Xxxxx Fargo Bank Minnesota, N.A., as securities
administrator and SASCO.
WHEREAS, Xxxxxx Capital desires that the Servicer continue to service
the Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to
the rights of Xxxxxx Capital (with the consent of the Master Servicer) to
terminate the rights and obligations of the Servicer hereunder at any time
without cause and to the other conditions set forth herein.
WHEREAS, Xxxxxx Capital and the Servicer agree that the provisions of
the Flow Agreement shall continue to apply to the Serviced Mortgage Loans, but
only to the extent provided herein and that this Agreement shall govern the
Serviced Mortgage Loans for so long as such Serviced Mortgage Loans remain
subject to the provisions of the Trust Agreement.
WHEREAS, the Master Servicer and any successor master servicer shall
be obligated, among other things, to supervise the servicing of the Serviced
Mortgage Loans on behalf of the Trustee, and shall have the right under the
conditions specified herein to terminate for cause the rights and obligations
of the Servicer under this Agreement.
WHEREAS, Xxxxxx Capital and the Servicer intend that each of the
Master Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Xxxxxx Capital and the Servicer
hereby agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in
this Agreement, including Exhibit A hereto and any provisions of the Flow
Agreement incorporated by reference herein (regardless of whether such terms
are defined in the Flow Agreement or Purchase Agreement), shall have the
meanings ascribed to such terms in the Trust Agreement.
2. Servicing. The Servicer agrees, with respect to the
Serviced Mortgage Loans, to perform and observe the duties, responsibilities
and obligations that are to be performed and observed under the provisions of
the Flow Agreement, except as otherwise provided herein and on Exhibit A
hereto, and that the provisions of the Flow Agreement, as so modified, are and
shall be a part of this Agreement to the same extent as if set forth herein in
full.
3. Master Servicing; Termination of Servicer. The Servicer,
including any successor servicer hereunder, shall be subject to the
supervision of the Master Servicer, which Master Servicer shall be obligated
to ensure that the Servicer services the Serviced Mortgage Loans in accordance
with the provisions of this Agreement. The Master Servicer, acting on behalf
of the Trustee and the SASCO 2000-3 Trust Fund (the "Trust Fund") created
pursuant to the Trust Agreement, shall have the same rights as Xxxxxx Capital,
as purchaser, under the Flow Agreement to enforce the obligations of the
Servicer under the Flow Agreement and the term "Purchaser" as used in the Flow
Agreement in connection with any rights of the Purchaser shall refer to the
Trust Fund or, as the context requires, the Master Servicer acting in its
capacity as agent for the Trust Fund, except as otherwise specified in Exhibit
A hereto. The Master Servicer shall be entitled to terminate the rights and
obligations of the Servicer under this Agreement upon the failure of the
Servicer to perform any of its obligations under this Agreement, which failure
results in an Event of Default as provided in Article XI of the Flow
Agreement. Notwithstanding anything herein to the contrary, in no event shall
the Master Servicer assume any of the obligations of Xxxxxx Capital under the
Flow Agreement and in connection with the performance of the Master Servicer's
duties hereunder, the parties and other signatories hereto agree that the
Master Servicer shall be entitled to all of the rights, protections and
limitations of liability afforded to the Master Servicer under the Trust
Agreement.
4. No Representations. Neither the Servicer nor the Master Servicer
shall be obligated or required to make any representations and warranties
regarding the characteristics of the Serviced Mortgage Loans in connection
with the transactions contemplated by the Trust Agreement and issuance of the
Certificates issued pursuant thereto.
5. Notices. All notices and communications between or among the
parties hereto (including any third party beneficiary thereof) or required to
be provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
All notices required to be delivered to the Master Servicer under
this Agreement shall be delivered to the Master Servicer at the following
address:
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: E. Xxxx Xxxxxxxxxx, Master Servicing, SASCO/ALS 2000-3
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled basis to the following wire
account:
The Chase Manhattan Bank
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc., Master Servicing
Payment Clearing Account
Account No.: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO/ALS 2000-3
All notices required to be delivered to the Trustee hereunder shall
be delivered to the Trustee at the following address:
Bank One, National Association
0 Xxxx Xxx Xxxxx
Xxxx Xxxxx 0X0 - 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Corporate Trust Services, SASCO/ALS 2000-3
Telephone: 000-000-0000
Telecopier: 000-000-0000
All notices required to be delivered to Xxxxxx Capital hereunder
shall be delivered to Xxxxxx Capital at the following address:
Xxxxxx Capital, a Division of Xxxxxx
Brothers Holdings Inc.
0000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Mortgage Backed Finance Department
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All notices required to be delivered to the Servicer hereunder shall
be delivered to the address of its office as set forth in the first paragraph
of this Agreement.
6. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS 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
counterparts, each of which when so executed shall be deemed to be an
original, but all of which counterparts shall together constitute but one and
the same instrument.
Executed as of the day and year first above written.
XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC., as
Owner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
GREENPOINT MORTGAGE FUNDING INC., as
Servicer
By: /s/ Xxxxxxx Xxxxx
-------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Acknowledged By:
AURORA LOAN SERVICES INC.,
as Master Servicer
By: /s/ Xxxxx X. Xxxxx III
--------------------------------------------
Name: Xxxxx X. Xxxxx III
Title: CEO
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
EXECUTION
EXHIBIT A
Modifications to the Flow Agreement
1. A new definition of "Ancillary Income" is hereby added to
Article I to immediately follow the definition of "Accepted Servicing
Practices", to read as follows:
"Ancillary Income": All income derived from the Mortgage
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, prepayment penalty amounts, assumption fees, optional
insurance administrative fees and all other incidental fees
and charges.
2. A new definition of "Best Efforts" is hereby added to Article I to
immediately follow the definition of "Agreement", to read as follows:
"Best Efforts": Efforts determined to be reasonably diligent
by the Servicer in its sole discretion. Such efforts do not
require the Servicer to enter into any litigation,
arbitration or other legal or quasi-legal proceeding, nor do
they require the Servicer to advance or expend fees or sums
of money in addition to those specifically set forth in this
Agreement.
3. A new definition of "Determination Date" is hereby added to Article I
to immediately follow the definition of "Condemnation Proceeds", to
read as follows:
"Determination Date" The fifteenth (15th) day of the
calendar month of the related Remittance Date (or if such
day is not a Business Day, the Business Day immediately
preceding such day).
4. A new definition of "Due Date" is hereby added to Article I to
immediately follow the definition of "Determination Date", to read as
follows:
"Due Date": The day of the month on which the scheduled
monthly payment is due on a Mortgage Loan, exclusive of any
days of grace. With respect to the Mortgage Loans for which
payment from the Mortgagor is due on a day other than the
first day of the month, such Mortgage Loans will be treated
as if the monthly payment is due on the first day of the
immediately succeeding month.
5. A new definition of "Due Period" is hereby added to Article I to
immediately follow the definition of "Due Date", to read as follows:
"Due Period": With respect to each Remittance Date, the
period commencing on the second day of the month immediately
preceding the month of such Remittance Date and ending on
the first day of the month of such Remittance Date.
6. The definition of "Eligible Investments" in Article I is hereby
amended in its entirety to read as follows:
"Eligible Investments": Any one or more of the obligations
and securities listed below which investment provides for a
date of maturity not later than the Determination Date in
each month:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and
credit of the United States of America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in, certificates
of deposits of, or bankers' acceptances issued by, any depository
institution or trust company (including U.S. subsidiaries of foreign
depositories and the Trustee or any agent of the Trustee, acting in
its respective commercial capacity) incorporated or organized under
the laws of the United States of America or any state thereof and
subject to supervision and examination by federal or state banking
authorities, so long as at the time of investment or the contractual
commitment providing for such investment the commercial paper or
other short-term debt obligations of such depository institution or
trust company (or, in the case of a depository institution or trust
company which is the principal subsidiary of a holding company, the
commercial paper or other short-term debt or deposit obligations of
such holding company or deposit institution, as the case may be) have
been rated by each Rating Agency in its highest short-term rating
category or one of its two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct Obligations
or securities guaranteed by GNMA, Xxxxxx Xxx or Xxxxxxx Mac with any
registered broker/dealer subject to Securities Investors' Protection
Corporation jurisdiction or any commercial bank insured by the FDIC,
if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States of
America or any state thereof which have a credit rating from each
Rating Agency, at the time of investment or the contractual
commitment providing for such investment, at least equal to one of
the two highest long-term credit rating categories of each Rating
Agency; provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held as part of the
Trust Fund to exceed 20% of the sum of the aggregate principal
balance of the Mortgage Loans; provided, further, that such
securities will not be Eligible Investments if they are published as
being under review with negative implications from either Rating
Agency;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 180 days after the date
of issuance thereof) rated by each Rating Agency in its highest
short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of
the United States of America or its agencies or instrumentalities
(which obligations are backed by the full faith and credit of the
United States of America) held by a custodian in safekeeping on
behalf of the holders of such receipts; and
(viii) any other demand, money market, common trust fund or time
deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating
Agency or (B) that would not adversely affect the then current rating
by each Rating Agency of any of the Certificates. Such investments in
this subsection (viii) may include money market mutual funds or
common trust funds, including any fund for which the Trustee, the
Master Servicer or an affiliate thereof serves as an investment
advisor, administrator, shareholder servicing agent, and/or custodian
or subcustodian, notwithstanding that (x) the Trustee, the Master
Servicer or an affiliate thereof charges and collects fees and
expenses from such funds for services rendered, (y) the Trustee, the
Master Servicer or an affiliate thereof charges and collects fees and
expenses for services rendered pursuant to this Agreement, and (z)
services performed for such funds and pursuant to this Agreement may
converge at any time, provided, however, that no such instrument
shall be an Eligible Investment if such instrument evidences either
(i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and
interest payments derived from obligations underlying such instrument
and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the
yield to maturity at par of such underlying obligations.
7. A definition of "GNMA" is hereby added to Article I to immediately
follow the definition of "FNMA Guides", to read as follows:
"GNMA": The Government National Mortgage Association, or any
successor thereto.
8. A definition of "Monthly Advance" is hereby added to Article I to
immediately follow the definition of "Liquidation Proceeds", to read
as follows:
"Monthly Advance" means with respect to each Remittance Date
and each Mortgage Loan, an amount equal to the Monthly
Payment (with the interest portion of such Monthly Payment
adjusted to the Mortgage Loan Remittance Rate) that was due
on the Mortgage Loan, and that (i) was delinquent at the
close of business on the first day of the month in which
such Remittance Date occurs and (ii) was not the subject of
a previous Monthly Advance, but only to the extent that such
amount is expected, in the reasonable judgment of the
Servicer, to be recoverable from collections or other
recoveries in respect of such Mortgage Loan. To the extent
that the Servicer determines that any such amount is not
recoverable from collections or other recoveries in respect
of such Mortgage Loan, such determination shall be evidenced
by a certificate of a Servicing Officer delivered to the
Master Servicer setting forth such determination and the
procedures and considerations of the Servicer forming the
basis of such determination, which shall include a copy of
any broker's price opinion and any other information or
reports obtained by the Servicer which may support such
determinations.
9. A new definition of "Mortgage Loan" is hereby added to Article I to
immediately follow the definition of "Mortgage Impairment Insurance
Policy", to read as follows:
"Mortgage Loan": An individual servicing retained Mortgage
Loan which has been assigned by Bank to Xxxxxx Capital
pursuant to the Assignment, Assumption and Recognition
Agreement and is subject to this Agreement being identified
on the Mortgage Loan Schedule to this Agreement, which
Mortgage Loan includes without limitation the Mortgage Loan
documents, the monthly reports, Principal Prepayments,
Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and all other rights,
benefits, proceeds and obligations arising from or in
connection with such Mortgage Loan.
10. A new definition of "Mortgage Loan Schedule" is hereby added to
Article I to immediately follow the definition of "Mortgage Loan
Remittance Rate", to read as follows:
"Mortgage Loan Schedule": The schedule of Mortgage Loans
attached as Exhibit D to this Agreement setting forth
certain information with respect to the Mortgage Loans
acquired by the Bank from the Servicer pursuant to the
Purchase Agreement which were in turn acquired by Xxxxxx
Capital from the Bank pursuant to the Assignment, Assumption
and Recognition Agreement.
11. A new definition of "Prepayment Interest Shortfall Amount" is hereby
added to Article I to immediately follow the definition of "Purchase
Agreement", to read as follows:
"Prepayment Interest Shortfall Amount": With respect to any
Remittance Date and any Principal Prepayment (other than any
such prepayment received on the first of the month) received
during the related Prepayment Period, the difference between
(i) one full month's interest at the applicable Mortgage
Loan Remittance Rate (giving effect to any applicable Relief
Act Reduction) 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.
12. A new definition of "Prepayment Period" is hereby added to Article I
to immediately follow the definition of "Prepayment Interest
Shortfall Amount", to read as follows:
"Prepayment Period": The month preceding the month in which
the related Remittance Date occurs.
13. A new definition of "Principal Payment" is hereby added to Article I
to immediately follow the definition of "Prime Rate", to read as
follows:
"Principal Payment": Any Mortgagor payment of principal
(other than a balloon payment) or other recovery of
principal on a Mortgage Loan that is recognized as having
been received or recovered in advance of its scheduled Due
Date and applied to reduce the principal balance of the
Mortgage Loan in accordance with the terms of the Mortgage
Note.
14. The definition of "Qualified Depository" is hereby amended and
restated in its entirety to read as follows:
"Qualified Depository": Any of (i) a depository the accounts
of which are insured by the FDIC and the debt obligations of
which are rated AA (or its equivalent) or better by each
Rating Agency; (ii) the corporate trust department of any
bank the debt obligations of which are rated at least A-1 or
its equivalent by each Rating Agency; or (iii) Xxxxxx
Brothers Bank, F.S.B., a federal savings bank.
15. A new definition of "Qualified GIC" is hereby added to Article I to
immediately follow the definition of "Qualified Depository", to read
as follows:
"Qualified GIC": A guaranteed investment contract or surety
bond providing for the investment of funds in the Custodial
Account and insuring a minimum, fixed or floating rate of
return on investments of such funds, which contract or
surety bond shall:
(a) be an obligation of an insurance company
or other corporation whose long-term debt is rated by each
Rating Agency in one of its two highest rating categories
or, if such insurance company has no long-term debt, whose
claims paying ability is rated by each Rating Agency in one
of its two highest rating categories, and whose short-term
debt is rated by each Rating Agency in its highest rating
category;
(b) provide that the Servicer may exercise all of
the rights under such contract or surety bond without the
necessity of taking any action by any other Person;
(c) provide that if at any time the then current
credit standing of the obligor under such guaranteed
investment contract is such that continued investment
pursuant to such contract of funds would result in a
downgrading of any rating of the Servicer, the Servicer
shall terminate such contract without penalty and be
entitled to the return of all funds previously invested
thereunder, together with accrued interest thereon at the
interest rate provided under such contract to the date of
delivery of such funds to the Trustee;
(d) provide that the Servicer's interest therein
shall be transferable to any successor Servicer or the
Master Servicer hereunder; and
(e) provide that the funds reinvested thereunder
and accrued interest thereon be returnable to the Custodial
Account, as the case may be, not later than the Business Day
prior to any Determination Date.
16. A new definition of "Rating Agency" is hereby added to Article I to
immediately follow the definition of "Qualified Insurer", to read as
follows:
"Rating Agency": Any of Fitch IBCA, Inc., Xxxxx'x Investors
Service, Inc., Standard & Poor's Rating Service, a division
of the XxXxxx-Xxxx Agencies, Inc., or any successor of the
foregoing.
17. A new definition of "Relief Act Reduction" is hereby added to
Article I to immediately follow the definition of "Rating Agency", to
read as follows:
"Relief Act Reduction": With respect to any Mortgage 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
Mortgage Loan for the Due Date in the related Due Period is
less than the interest accrued thereon for the applicable
one-month period at the Mortgage Interest Rate without
giving effect to such reduction.
18. The definition of "Remittance Date" which is incorporated in
this Agreement by reference to the Purchase Agreement is amended and
restated in its entirety to read as follows:
"Remittance Date": The 18th day (or if the 18th day is not a
Business Day, the first Business Day immediately following)
of any month.
19. The definition of "Servicing Fee" in Article I is hereby amended in
its entirety to read as follows:
"Servicing Fee": An amount equal to one-twelfth the product
of (a) the Servicing Fee Rate and (b) the outstanding
principal balance of the Mortgage Loan. The Servicing Fee is
payable solely from the interest portion (including
recoveries with respect to interest from Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds) of such scheduled monthly payment on
the Mortgage Loan collected by the Servicer or as otherwise
provided under this Agreement.
20. A new definition of "Servicing Fee Rate" is hereby added to
Article I to immediately follow the definition of "Servicing Fee", to
read as follows:
"Servicing Fee Rate": With respect to all Mortgage Loans, a
rate equal to 0.25% per annum.
21. Section 2.02 (Collection of Mortgage Loan Payments) is hereby
amended by replacing the words "Continuously from the related Cut-off
Date unit the related Transfer Date" in the first line thereof to
"Continuously from the Closing Date until the date the Mortgage Loan
ceases to be subject to this Agreement".
22. Section 2.04 (Establishment of and Deposits to Custodial Account) is
hereby amended by:
(i) replacing the words "for Xxxxxx Brothers Bank, FSB,
Residential Fixed Rate Mortgage Loans, Group No. 2000-1 and various
Mortgagors" with the words "for ALS 2000-3 Trust Fund and various
Mortgagors";
(ii) adding the words "including all Principal Prepayments" at
the end of clause (i) to such Section;
(iii) by deleting the word "and" at the end of clause (viii), by
replacing the period at the end clause (ix) with a semicolon, and by
adding the following new clauses (x) and (xi), to read as follows:
(x) all Monthly Advances made by the Servicer pursuant to
Section 3.03; and
(xi) any Prepayment Interest Shortfall Amount.
23. Section 2.05 (Permitted Withdrawals From Custodial Account) is
hereby amended by deleting the word "and" at the end of clause (v),
by replacing the period at the end of clause (vi) with a semicolon
and by adding the following new clauses (vii), (viii) and (ix):
(vii) to invest funds in the Custodial Account in Eligible
Investments in accordance with Section 2.10;
(viii) to reimburse itself for Monthly Advances of the
Servicer's funds made pursuant to Section 3.03, the Servicer's
right to reimburse itself pursuant to this clause (viii) with
respect to any Mortgage Loan being limited to amounts received
on or in respect of the related Mortgage 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;
and
(ix) to transfer funds to another Qualified Depository in
accordance with Section 2.10 hereof.
24. Section 2.06 (Establishment of and Deposits to Escrow Account) is
hereby amended by replacing the words "in trust for Xxxxxx Brothers
Bank, FSB Residential Fixed Mortgage Loans, Group No. 2000-1, and
various Mortgagors" with "in trust for ALS 2000-3 Trust Fund and
various Mortgagors."
25. Section 2.17 (Title, Management and Disposition of REO Property) is
hereby amended by:
(a) adding the following paragraph as the third
paragraph of such Section:
Notwithstanding anything to the contrary contained
in this Section 2.17, 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 or the Master
Servicer 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 and the Master Servicer 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,
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.
(b) by replacing the existing third paragraph of such
section (before the amendment made by (a) above) by
the following paragraph:
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 (a) a REMIC election
has not been made with respect to the arrangement under
which the Mortgage Loans and the REO Property are held, and
(b) the Servicer determines, and gives an appropriate notice
to the Master Servicer to such effect, that a longer period
is necessary for the orderly liquidation of such REO
Property. 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
Master Servicer 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. Notwithstanding anything
herein to the contrary, the Servicer shall not be required
to provide financing for the sale of any REO Property.
26. Section 3.01 (Remittances) is hereby amended and restated in its
entirety to read as follows:
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 Sections 2.04 and 2.05), plus
(b) all Monthly Advances, if any, which the Servicer is
obligated to make pursuant to Section 3.03, 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 2.04 (xi), and minus (d) any amounts
attributable to scheduled monthly payments on the Mortgage
Loans 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
Master Servicer after the Business Day on which such payment
was due, the Servicer shall pay to the Master Servicer
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 Master
Servicer shall be made to the following wire account or to
such other account as may be specified by the Master
Servicer from time to time:
[[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: Aurora Loan Services
2000-3
27. Section 3.02 (Statements to Purchaser) is hereby amended by replacing
the first paragraph of such Section in its entirety by the following
paragraph:
Not later than the fifth Business Day of each
month, the Servicer shall furnish to the Master Servicer (a)
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 Master Servicer as to
the accompanying remittance and the period ending on the
last day of the preceding Determination Date and (b) all
such information required pursuant to clause (a) above on a
magnetic tape or other similar media reasonably acceptable
to the Master Servicer.
The Monthly Remittance Advice shall also include on
a current and cumulative basis the amount of any (i) claims
filed, (ii) claim payments made, (iii) claims denied and
(iv) policies cancelled with respect to those Serviced
Mortgage Loans covered by any PMI Policy.
By replacing the last paragraph of such Section 3.02 in its entirety
with the following paragraph:
Beginning with calendar year 2001, the Servicer
shall prepare and file any and all tax returns, information
statements or other filings for the portion of the tax year
2000 and the portion of subsequent tax years for which the
Servicer has serviced some or all of the Mortgage Loans
hereunder as such returns, information statements or other
filings are required to be delivered to any governmental
taxing authority or to the Master Servicer pursuant to any
applicable law with respect to the Mortgage Loans and the
transactions contemplated hereby. In addition, the Servicer
shall provide the Master Servicer with such information
concerning the Mortgage Loans as is necessary for the Master
Servicer to prepare the Trust Fund's federal income tax
return as the Master Servicer may reasonably request from
time to time.
28. Section 3.03 (Principal and Interest Advances by Seller) is hereby
deleted and replaced in its entirety by the following paragraph:
Section 3.03 Monthly Advances by Servicer.
The Servicer shall make Monthly Advances through
the Remittance Date immediately preceding the distribution
of all Liquidation Proceeds and other payments or recoveries
(including Insurance Proceeds and Condemnation Proceeds)
with respect to the related Mortgage Loans.
Any amounts held for future distribution and so
used to make Monthly Advances shall be replaced by the
Servicer by deposit in the Custodial Account on or before
any future Remittance Date if funds in the Custodial Account
on such Remittance Date shall be less than payments to the
Trust Fund required to be made on such Remittance Date.
29. Section 4.03 (Servicing Compensation) is amended and restated in its
entirety to read as follows:
As consideration for servicing the Mortgage Loans
subject to this Agreement, the Servicer shall retain (a) the
relevant Servicing Fee for each Mortgage Loan remaining
subject to this Agreement during any month and (b) Ancillary
Income. The Servicing Fee shall be payable monthly. The
aggregate of the Servicing Fees payable to the Servicer for
any month with respect to the Mortgage Loans shall be
reduced by any Prepayment Interest Shortfall Amount with
respect to such month.
The Servicer shall be required to pay all expenses
incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement thereof
except as specifically provided for herein.
30. A new Section 4.05 (Annual Independent Public Accountants Servicing
Report) is hereby added to the Agreement to read as follows:
Section 4.05 Annual Audit Report.
On or before July 31 of each year, beginning with
July 31, 2001, Servicer shall, at its own expense, cause a
firm of independent public accountants (who may also render
other services to Servicer), which is a member of the
American Institute of Certified Public Accountants, to
furnish to the Seller and Master Servicer (i) year-end
audited (if available) financial statements of the Servicer
and (ii) a statement to the effect that such firm has
examined certain documents and records for the preceding
fiscal year (or during the period from the date of
commencement of such Servicer's duties hereunder until the
end of such preceding fiscal year in the case of the first
such certificate) and that, on the basis of such examination
conducted substantially in compliance with the Uniform
Single Attestation Program for Mortgage Bankers, such firm
is of the opinion that Servicer's overall servicing
operations have been conducted in compliance with the
Uniform Single Attestation Program for Mortgage Bankers
except for such exceptions that, in the opinion of such
firm, the Uniform Single Attestation Program for Mortgage
Bankers requires it to report, in which case such exceptions
shall be set forth in such statement.
31. A new Section 4.06 is hereby added to the Agreement to read as
follows:
Section 4.06 Annual Officer's Certificate.
On or before July 31st of each year, beginning with
July 31, 2001, the Servicer, at its own expense, will
deliver to Xxxxxx Capital and the Master Servicer a
Servicing Officer's certificate stating, as to each signer
thereof, that (i) a review of the activities of the Servicer
during such preceding fiscal year and of performance under
this Agreement has been made under such officers'
supervision, and (ii) to the best of such officers'
knowledge, based on such review, the Servicer has fulfilled
all its obligations under this Agreement for such year, or,
if there has been a default in the fulfillment of all such
obligations, specifying each such default known to such
officer and the nature and status thereof including the
steps being taken by the Servicer to remedy such default.
32. The parties hereto acknowledge that Section 5.01 (Provision of
Information) and Section 5.02 (Financial Statements; Servicing
Facilities) are inapplicable to this Agreement.
33. The parties hereto acknowledge that the provisions of Sections 6.03
(Termination Upon Transfer of Servicing; Termination Procedures)
shall be inapplicable to this Agreement and shall be replaced by
Sections 11.03 (Termination Without Cause) and 11.04 (Successor to
Servicer) of this Agreement.
34. Sections 8.01 (Indemnification) and 8.02 (Limitation on Liability of
Seller and Others) is replaced by the following:
The Servicer shall indemnify the Trust Fund, the
Trustee and the Master Servicer and hold each of them
harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgements, and any other
costs, fees and expenses that any of such parties may
sustain in any way related to the failure of the Servicer to
perform its duties and service the Mortgage Loans in strict
compliance with the terms of this Agreement. The Servicer
immediately shall notify Xxxxxx Capital, the Master Servicer
and the Trustee or any other relevant party if a claim is
made by a third party with respect to this Agreement or the
Mortgage Loans, assume (with the prior written consent of
the indemnified party) the defense of any such claim and pay
all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgement
or decree which may be entered against it or any of such
parties in respect of such claim. The Servicer shall follow
any written instructions received from the Trustee in
connection with such claim. The Trustee from the assets of
the Trust Fund promptly shall reimburse the Servicer for all
amounts advanced by it pursuant to the preceding sentence
except when the claim is in any way relates to the failure
of the Servicer to service and administer the Mortgage Loans
in strict compliance with the terms of this Agreement.
The Trust Fund shall indemnify the Servicer and
hold it harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any
other costs, fees and expenses that the Servicer may sustain
in any way related to the failure of the Trustee or the
Master Servicer to perform its duties in compliance with the
terms of this Agreement.
In the event a dispute arises between an
indemnified party and the Servicer with respect to any of
the rights and obligations of the parties pursuant to this
Agreement and such dispute is adjudicated in a court of law,
by an arbitration panel or any other judicial process, then
the losing party shall indemnify and reimburse the winning
party for all attorney's fees and other costs and expenses
related to the adjudication of said dispute.
35. The first paragraph of Section 8.03 (Limitation on Resignation and
Assignment by Seller) is hereby amended in its entirety to read as
follows:
The Servicer shall neither assign this Agreement or
the servicing hereunder or delegate its rights or duties
hereunder or any portion hereof (to other than a third party
in the case of outsourcing routine tasks such as taxes,
insurance and property inspection, in which case the
Servicer shall be fully liable for such tasks as if the
Servicer performed them itself) or sell or otherwise dispose
of all or substantially all of its property or assets
without the prior written consent of the Trustee and the
Master Servicer, which consent shall be granted or withheld
in the reasonable discretion of such parties; provided,
however, that the Servicer may assign its rights and
obligations hereunder without prior written consent of the
Trustee and the Master Servicer to any entity that is
directly owned or controlled by the Servicer, and the
Servicer guarantees the performance of such entity
hereunder. In the event of such assignment by the Servicer,
the Servicer shall provide the Trustee and the Master
Servicer with a written statement guaranteeing the successor
entity's performance of the Servicer's obligations under the
Agreement.
36. Section 11.01 is hereby amended by replacing the last paragraph
thereof with the following:
Upon receipt by the Servicer of such written
notice, all authority and power of the Servicer under this
Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in a successor
Servicer appointed by the Xxxxxx Capital and the Master
Servicer. Upon written request from the Seller, the Servicer
shall prepare, execute and deliver to the successor entity
designated by the Seller any and all documents and other
instruments, place in such successor's possession all
Servicing Files, and do or cause to be done all other acts
or things necessary or appropriate to effect the purposes of
such notice of termination, including but not limited to the
transfer and endorsement or assignment of the Mortgage Loans
and related documents, at the Servicer's sole expense. The
Servicer shall cooperate with Xxxxxx Capital and the Master
Servicer 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 Mortgage Loans.
37. The parties hereto acknowledge that the word "Purchaser" in Section
11.02 (Waiver of Defaults) shall refer to the "Master Servicer with
the prior consent of the Trustee."
38. A new Section 11.03 (Termination Without Cause) is hereby added to
read as follows:
Section 11.03 Termination Without Cause.
This Agreement shall terminate upon: (i) the later
of (a) the distribution of the final payment or liquidation
proceeds on the last Mortgage Loan to the Trust Fund (or
advances by the Servicer for the same), and (b) the
disposition of all REO Property acquired upon foreclosure of
the last Mortgage Loan and the remittance of all funds due
hereunder, or (ii) mutual consent of the Servicer, Xxxxxx
Capital and the Master Servicer in writing or (iii) at the
sole option of the Xxxxxx Capital, without cause, upon 30
days written notice. Any such notice of termination shall be
in writing and delivered to the Servicer by registered mail
to the address set forth at the beginning of this Agreement.
The Master Servicer, the Trustee and the Servicer shall
comply with the termination procedures set forth in Sections
11.01 and 11.03.
In connection with any such termination referred to
in clause (ii) or (iii) above, Xxxxxx Capital will be
responsible for reimbursing the Servicer for all
unreimbursed out-of-pocket Servicing Advances within 15
Business Days following the date of termination and other
reasonable and necessary out-of-pocket costs associated with
any transfer of servicing.
39. A new Section 11.04 (Successor to the Servicer) is hereby amended in
its entirety to read as follows:
Simultaneously with the termination of the
Servicer's responsibilities and duties under this Agreement
pursuant to Sections 8.03, 11.01 or 11.03, the Master
Servicer shall, in accordance with the provisions of the
Trust Agreement (i) succeed to and assume all of the
Servicer's responsibilities, rights, duties and obligations
under this Agreement, or (ii) appoint a successor meeting
the eligibility requirements of this Agreement and (iii) and
which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Servicer
under this Agreement with the termination of the Servicer's
responsibilities, duties and liabilities under this
Agreement. Any successor to the Servicer shall be subject to
the approval of the Master Servicer, Xxxxxx Capital, the
Trustee and each Rating Agency (as such term is defined in
the Trust Agreement). Each Rating Agency must deliver to the
Trustee a letter to the effect that such transfer of
servicing will not result in a qualification, withdrawal or
downgrade of the then-current rating of any of the
Certificates. In connection with such appointment and
assumption, the Master Servicer or Xxxxxx Capital, as
applicable, may make such arrangements for the compensation
of such successor out of payments on the Mortgage Loans as
it and such successor shall agree; provided, however, that
no such compensation shall be in excess of that permitted
the Servicer under this Agreement. In the event that the
Servicer's duties, responsibilities and liabilities under
this Agreement should be terminated pursuant to the
aforementioned sections, the Servicer shall discharge such
duties and responsibilities during the period from the date
it acquires knowledge of such termination until the
effective date thereof with the same degree of diligence and
prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might
impair or prejudice the rights or financial condition of its
successor. The resignation or removal of the Servicer
pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to
this Section 11.04 and shall in no event relieve the
Servicer of the representations and warranties made pursuant
to Article X shall be applicable to the Servicer
notwithstanding any such resignation or termination of the
Servicer, or the termination of this Agreement.
Within a reasonable period of time, but in no event
longer than 30 days of the appointment of a successor
entity, the Servicer shall prepare, execute and deliver to
the successor entity any and all documents and other
instruments, place in such successor's possession all
Servicing Files, and do or cause to be done all other acts
or things necessary or appropriate to effect the purposes of
such notice of termination. The Servicer shall cooperate
with the Trustee and the Master Servicer, as applicable, and
such successor in effecting the termination of the
Servicer's responsibilities and rights hereunder and the
transfer of servicing responsibilities to the successor
Servicer, including without limitation, the transfer to such
successor for administration by it of all cash amounts which
shall at the time be credited by the Servicer to the
Custodial Account or any Escrow Account or thereafter
received with respect to the Mortgage Loans.
Any successor appointed as provided herein shall
execute, acknowledge and deliver to the Trustee, the
Servicer and the Master Servicer an instrument (i) accepting
such appointment, wherein the successor shall make 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 11.01 or 11.03 shall not
affect any claims that the Master Servicer or the Trustee
may have against the Servicer arising out of the Servicer's
actions or failure to act prior to any such termination or
resignation.
The Servicer shall deliver within three (3)
Business Days to the successor Servicer the funds in the
Custodial Account and Escrow Account and all Mortgage Loan
Documents and related documents and statements held by it
hereunder and the Servicer shall account for all funds and
shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and
definitively vest in the successor all such rights, powers,
duties, responsibilities, obligations and liabilities of the
Servicer.
Upon a successor's acceptance of appointment as
such, the Servicer shall notify the Trustee and Master
Servicer of such appointment in accordance with the notice
procedures set forth herein.
Except as otherwise provided in this Agreement, all
reasonable costs and expenses incurred in connection with
any transfer of servicing hereunder (whether as a result of
termination or removal of the Servicer or resignation of the
Servicer or otherwise), including, without limitation, the
costs and expenses of the Master Servicer or any other
Person in appointing a successor servicer, or of the Master
Servicer in assuming the responsibilities of the Servicer
hereunder, or of transferring the Servicing Files and the
other necessary data to the successor servicer shall be paid
by the terminated, removed or resigning Servicer from its
own funds without reimbursement.
40. Intended Third Party Beneficiaries. Notwithstanding any provision
herein to the contrary, the parties to this Agreement agree that it
is appropriate, in furtherance of the intent of such parties as set
forth herein, that the Master Servicer and the Trustee receive the
benefit of the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such provisions. The
Servicer shall have the same obligations to the Master Servicer and
the Trustee as if they were parties to this Agreement, and the Master
Servicer and the Trustee shall have the same rights and remedies to
enforce the provisions of this Agreement as if they were parties to
this Agreement. The Servicer shall only take direction from the
Master Servicer (if direction by the Master Servicer is required
under this Agreement) unless otherwise directed by this Agreement.
Notwithstanding the foregoing, all rights and obligations of the
Master Servicer and the Trustee hereunder (other than the right to
indemnification) shall terminate upon termination of the Trust
Agreement and of the Trust Fund pursuant to the Trust Agreement.
EXECUTION
EXHIBIT B
Flow Interim Servicing Agreement
EXECUTION
EXHIBIT C
Assignment, Assumption and Recognition Agreement
EXHIBIT D
Mortgage Loan Schedule
