EXHIBIT 99.10
EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of May, 2002, by and between XXXXXX BROTHERS BANK, FSB, a
federal savings bank (the "Seller" or "Xxxxxx Brothers Bank, FSB"), and GMAC
MORTGAGE CORPORATION, a Pennsylvania corporation (the "Servicer" or the
"Company"), having an office at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000,
recites and provides as follows:
RECITALS
WHEREAS, the Seller acquired certain conventional, residential, fixed
and adjustable rate, 103% loan-to-value ratio loans from the Servicer, which
such mortgage loans were either originated or acquired by the Servicer pursuant
to the Master Mortgage Loan Sale and Servicing Agreement, dated as of March 1,
2002 (the "Sale and Servicing Agreement"), and annexed as Exhibit B hereto.
WHEREAS, the Seller has conveyed certain mortgage loans as identified
on Exhibit C hereto (the "Mortgage Loans") to Structured Asset Securities
Corporation, a Delaware special purpose corporation ("SASCO"), which in turn has
conveyed the Mortgage Loans to LaSalle Bank National Association, as trustee
(the "Trustee"), pursuant to a trust agreement dated as of May 1, 2002 (the
"Trust Agreement"), among the Trustee, Aurora Loan Services Inc., as master
servicer ("Aurora," and, together with any successor Master Servicer appointed
pursuant to the provisions of the Trust Agreement, the "Master Servicer") and
SASCO.
WHEREAS, the Mortgage Loans are currently being serviced by the
Servicer for the Seller pursuant to the Sale and Servicing Agreement.
WHEREAS, the Seller desires that the Servicer continue to service the
Mortgage Loans, and the Servicer has agreed to do so, subject to the rights of
the Seller (with the consent of the Master Servicer) to terminate the rights and
obligations of the Servicer hereunder as permitted under Section 10.02 herein
and subject to the other conditions set forth herein.
WHEREAS, the Seller and the Servicer agree that the provisions of the
Sale and Servicing Agreement shall continue to apply to the Mortgage Loans, but
only to the extent provided herein and that this Agreement shall govern the
Mortgage Loans for so long as such Mortgage Loans remain subject to the
provisions of the Trust Agreement and until the Transfer Date.
WHEREAS, the Seller and the Servicer agree that if a successor servicer
is appointed pursuant to the terms of this Agreement, the Servicer shall no
longer service the Mortgage Loans and shall transfer servicing of the Mortgage
Loans to the successor servicer designated by the Seller herein.
WHEREAS, the Master Servicer and any successor master servicer shall be
obligated, among other things, to supervise the servicing of the Mortgage Loans
on behalf of the Trustee, and shall have the right under the conditions
specified herein to terminate for cause the rights and obligations of the
Servicer under this Agreement.
WHEREAS, the Seller and the Servicer intend that each of the Master
Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Seller and the Servicer hereby
agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this
Agreement, including Exhibit A hereto and any provisions of the Sale and
Servicing Agreement incorporated by reference herein (regardless of whether such
terms are defined in the Sale and Servicing Agreement), shall have the meanings
ascribed to such terms in the Trust Agreement.
2. Custodianship. The parties hereto acknowledge that U.S. Bank,
National Association will act as custodian of the Mortgage Files for the Trustee
pursuant to a Custodial Agreement, dated May 1, 2002, between U.S. Bank,
National Association and the Trustee.
3. Servicing. The Servicer agrees, with respect to the Mortgage Loans,
to perform and observe the duties, responsibilities and obligations that are to
be performed and observed under the provisions of the Sale and Servicing
Agreement, except as otherwise provided herein and on Exhibit A hereto, and that
the provisions of the Sale and 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.
4. Master Servicing; Termination of Servicer. The Servicer, including
any successor servicer hereunder, shall be subject to the supervision of the
Master Servicer, which Master Servicer shall be obligated to ensure that the
Servicer services the Mortgage Loans in accordance with the provisions of this
Agreement. The Master Servicer, acting on behalf of the Trustee and the SASCO
2002-10H Trust Fund (the "Trust Fund") created pursuant to the Trust Agreement,
shall have the same rights as the Seller under the Sale and Servicing Agreement
to enforce the obligations of the Servicer under the Sale and Servicing
Agreement and the term "Initial Owner" or "Owner" as used in the Sale and
Servicing Agreement in connection with any rights of the Initial Owner or Owner
shall refer to the Trust Fund or, as the context requires, the Master Servicer
acting in its capacity as agent for the Trust Fund, except as otherwise
specified in Exhibit A hereto. The Master Servicer shall be entitled to
terminate the rights and obligations of the Servicer under this Agreement upon
the failure of the Servicer to perform any of its obligations under this
Agreement, which failure results in an Event of Default as provided in Article
IX of the Sale and Servicing Agreement. Notwithstanding anything herein to the
contrary, in no event shall the Master Servicer assume any of the obligations of
the Seller under the Sale and Servicing Agreement and in connection with the
performance of the Master Servicer's duties hereunder, the parties and other
signatories hereto agree that the Master Servicer shall be entitled to all of
the rights, protections and limitations of liability afforded to the Master
Servicer under the Trust Agreement.
5. No Representations. Neither the Servicer nor the Master Servicer
shall be obligated or required to make any representations and warranties
regarding the characteristics of the Mortgage Loans in connection with the
transactions contemplated by the Trust Agreement and issuance of the
Certificates issued pursuant thereto.
6. Notices. All notices and communications between or among the parties
hereto (including any third party beneficiary thereof) or required to be
provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
All notices required to be delivered to the Master Servicer under this
Agreement shall be delivered to the Master Servicer at the following address:
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: E. Xxxx Xxxxxxxxxx, Master Servicing, SASCO 0000-00X
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled basis to the following wire
account:
JPMorgan Chase Bank
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc., Master Servicing Payment
Clearing Account
Account No.: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO 2002-4H
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities SASCO 0000-00X
Telephone: 000-000-0000
Facsimile: 000-000-0000
All notices required to be delivered to the Seller hereunder shall be
delivered to the Seller at the following address:
Xxxxxx Brothers Bank, FSB
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to the Servicer hereunder shall be
delivered to the Servicer at the following address:
GMAC Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Email: xxxx_xxxxxxxx@xxxxx.xxx
7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING NEW YORK OR
OTHER CHOICE OF LAW RULES TO THE CONTRARY.
8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
Executed as of the day and year first above written.
XXXXXX BROTHERS BANK, FSB,
as Seller
By:
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
GMAC MORTGAGE CORPORATION,
as Servicer
By:
-----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
Acknowledged By:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:
---------------------------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------------
Name:
Title:
EXHIBIT A
Modifications to the Sale and Servicing Agreement
1. Unless otherwise specified herein, any provisions of the Sale and
Servicing Agreement, including definitions, relating to Whole-Loan
Transfers, Pass-Through Transfers, Closing Dates, Cut-off Dates and
First Remittance Dates shall be disregarded. Unless otherwise specified
herein, for purposes of this Agreement, the exhibits to the Sale and
Servicing Agreement and all references to such exhibits shall also be
disregarded.
2. The definition of "Custodial Agreement" in Article I is hereby amended
in its entirety to read as follows:
"Custodial Agreement" means the Trust Agreement.
3. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
"Custodian" means U.S. Bank, National Association
4. The definition of "Determination Date" in Article I is hereby amended
in its entirety to read as follows:
"Determination Date" means the 15th day (or if such 15th day
is not a Business Day, the Business Day immediately preceding
such 15th day) of the month of the related Remittance Date.
5. The definition of "Due Period" in Article I is hereby amended in its
entirety to read as follows:
"Due Period": With respect to each Remittance Date, the period
commencing on the second day of the month immediately
preceding the month of such Remittance Date and ending on the
first day of the month of such Remittance Date.
6. The definition of "Eligible Depository Institution" in Article I is
hereby amended in its entirety to read as follows:
"Eligible Depository Institution": Any of (i) a federal or
state-chartered depository institution the accounts of which
are insured by the FDIC and whose commercial paper, short-term
debt obligations or other short-term deposits are rated at
least "A-1+" by Standard & Poor's if the deposits are to be
held in the account for less than 30 days, or whose long-term
unsecured debt obligations are rated at least "AA-" by
Standard & Poor's if the deposits are to be held in the
account for more than 30 days, or (ii) the corporate trust
department of a federal or state-chartered depository
institution subject to regulations regarding fiduciary funds
on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), which, in either case, has
corporate trust powers, acting in its fiduciary capacity, or
(iii) Xxxxxx Brothers Bank, F.S.B., a federal savings bank.
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7. The definition of "Eligible Investments" in Article I is hereby amended
in its entirety to read as follows:
"Eligible Investments": Any one or more of the obligations and
securities listed below which investment provides for a date
of maturity not later than the Determination Date in each
month:
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by,
the United States of America or any agency or instrumentality
of the United States of America the obligations of which are
backed by the full faith and credit of the United States of
America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued
by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or
any agent of the Trustee, acting in its respective commercial
capacity) incorporated or organized under the laws of the
United States of America or any state thereof and subject to
supervision and examination by federal or state banking
authorities, so long as at the time of investment or the
contractual commitment providing for such investment the
commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company
or deposit institution, as the case may be) have been rated by
each Rating Agency in its highest short-term rating category
or one of its two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by Xxxxxx Mae, Xxxxxx Xxx
or Xxxxxxx Mac with any registered broker/dealer subject to
Securities Investors' Protection Corporation jurisdiction or
any commercial bank insured by the FDIC, if such broker/dealer
or bank has an uninsured, unsecured and unguaranteed
obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities bearing interest or sold at a
discount issued by any corporation incorporated under the laws
of the United States of America or any state thereof which
have a credit rating from each Rating Agency, at the time of
investment or the contractual commitment providing for such
investment, at least equal to one of the two highest long-term
credit rating categories of each Rating Agency; provided,
however, that securities issued by any particular corporation
will not be Eligible Investments to the extent that investment
therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of the
Trust Fund to exceed 20% of the sum of the aggregate principal
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;
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(v) commercial paper (including both
non-interest-bearing discount obligations and interest-bearing
obligations payable on demand or on a specified date not more
than 180 days after the date of issuance thereof) rated by
each Rating Agency in its highest short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct
ownership interests in future interest or principal payments
on obligations of the United States of America or its agencies
or instrumentalities (which obligations are backed by the full
faith and credit of the United States of America) held by a
custodian in safekeeping on behalf of the holders of such
receipts; and
(viii) any other demand, money market, common trust
fund or time deposit or obligation, or interest-bearing or
other security or investment, (A) rated in the highest rating
category by each Rating Agency or (B) that would not adversely
affect the then current rating by each Rating Agency of any of
the Certificates. Such investments in this subsection (viii)
may include money market mutual funds or common trust funds,
including any fund for which the Trustee, the Master Servicer
or an affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, and/or custodian
or subcustodian, notwithstanding that (x) the Trustee, the
Master Servicer or an affiliate thereof charges and collects
fees and expenses from such funds for services rendered, (y)
the Trustee, the Master Servicer or an affiliate thereof
charges and collects fees and expenses for services rendered
pursuant to this Agreement, and (z) services performed for
such funds and pursuant to this Agreement may converge at any
time, provided, however, that no such instrument shall be an
Eligible Investment if such instrument evidences either (i) a
right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal
and interest payments derived from obligations underlying such
instrument and the principal and interest payments with
respect to such instrument provide a yield to maturity of
greater than 120% of the yield to maturity at par of such
underlying obligations.
8. A definition of "Xxxxxx Xxx" is hereby added to Article I to
immediately follow the definition of "GMAC" and to read as follows:
"Xxxxxx Mae": The Government National Mortgage Association, or
any successor thereto.
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9. The definition of "Mortgage Loan" in Article is hereby amended in its
entirety to read as follows:
"Mortgage Loan": An individual Mortgage Loan which has been
purchased from the Company by Xxxxxx Brothers Bank, FSB and is
subject to this Agreement being identified on the Mortgage
Loan Schedule to this Agreement, which Mortgage Loan includes
without limitation the Mortgage Loan documents, the monthly
reports, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition
Proceeds and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage
Loan.
10. The definition of "Mortgage Loan Schedule" in Article I is hereby
amended in its entirety to read as follows:
"Mortgage Loan Schedule": The schedule of Mortgage Loans
attached as Exhibit C to this Agreement setting forth certain
information with respect to the Mortgage Loans purchased from
the Company by Xxxxxx Brothers Bank, FSB pursuant to the Sale
and Servicing Agreement.
11. The definition of "P&I Advance" in Article I is hereby amended in its
entirety to read as follows:
"P&I Advance": With respect to each Remittance Date and each
Mortgage Loan, an amount equal to the Monthly Payment (with
the interest portion of such Monthly Payment adjusted to the
Mortgage Loan Remittance Rate) that was due on the Mortgage
Loan on the Due Date in the related Due Period, and that (i)
was delinquent at the close of business on the related
Determination Date and (ii) was not the subject of a previous
P&I Advance, but only to the extent that such amount is
expected, in the reasonable judgment of the Company, to be
recoverable from collections or other recoveries in respect of
such Mortgage Loan. To the extent that the Company determines
that any such amount is not recoverable from collections or
other recoveries in respect of such Mortgage Loan, such
determination shall be evidenced by a certificate of a
Servicing Officer delivered to the Master Servicer setting
forth such determination and the procedures and considerations
of the Company forming the basis of such determination, which
shall include a copy of any broker's price opinion and any
other information or reports obtained by the Company which may
support such determinations.
12. The definition of "Prepayment Interest Shortfall" in Article I is
hereby amended in its entirety to read as follows:
"Prepayment Interest Shortfall": With respect to any Mortgage
Loan that was subject to a Principal Prepayment in full or in
part during any Due Period, which Principal Prepayment was
applied to such Mortgage Loan prior to such Mortgage Loan's
Due Date in such Due Period, the amount of interest (net the
related Servicing Fee for Principal Prepayments in full) that
would have accrued on the amount of such Principal Prepayment
during the period commencing on the date as of which such
Principal Prepayment was applied to such Mortgage Loan and
ending on the day immediately preceding such Due Date,
inclusive.
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13. A definition of "Qualified GIC" in Article I is hereby added to
immediately follow the definition of "Qualified Appraiser" and to read
as follows:
"Qualified GIC": A guaranteed investment contract or surety
bond providing for the investment of funds in the Custodial
Account and insuring a minimum, fixed or floating rate of
return on investments of such funds, which contract or surety
bond shall:
(a) be an obligation of an insurance company or other
corporation whose long-term debt is rated by each Rating
Agency in one of its two highest rating categories or, if such
insurance company has no long-term debt, whose claims paying
ability is rated by each Rating Agency in one of its two
highest rating categories, and whose short-term debt is rated
by each Rating Agency in its highest rating category;
(b) provide that the Company may exercise all of the
rights under such contract or surety bond without the
necessity of taking any action by any other Person;
(c) provide that if at any time the then current
credit standing of the obligor under such guaranteed
investment contract is such that continued investment pursuant
to such contract of funds would result in a downgrading of any
rating of the Company, the Company shall terminate such
contract without penalty and be entitled to the return of all
funds previously invested thereunder, together with accrued
interest thereon at the interest rate provided under such
contract to the date of delivery of such funds to the Trustee;
(d) provide that the Company's interest therein shall
be transferable to any successor Company or the Master
Servicer hereunder; and
(e) provide that the funds reinvested thereunder and
accrued interest thereon be returnable to the Custodial
Account, as the case may be, not later than the Business Day
prior to any Determination Date.
14. The definition of "Servicing Fee" in Article I is hereby amended and
restated in its entirety to read as follows:
Servicing Fee: An amount equal to one-twelfth the product of
(a) 0.25% per annum (the "Servicing Fee Rate") and (b) the
outstanding principal balance of the Mortgage Loan. The
Servicing Fee is payable solely from the interest portion
(including recoveries with respect to interest from
Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds) of such Monthly Payment
collected by the Company or as otherwise provided under this
Agreement.
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15. The parties hereto acknowledge that Section 2.03 (Custodial Agreement;
Delivery of Mortgage Loan Documents) shall be inapplicable to this
Agreement, as superseded by the provisions of the Custodial Agreement
and the Trust Agreement.
16. Section 4.01 (Company to Act as Servicer) is hereby amended and
restated in its entirety to read as follows:
From the date of origination of the related Mortgage
Loans to the related Closing Date, the Company shall have
serviced the related Mortgage Loans in accordance with
Customary Servicing Procedures. From and after the related
Closing Date, the Company, as an independent contractor, shall
service and administer the Mortgage Loans pursuant to this
Agreement and shall have full power and authority, acting
alone, to do any and all things in connection with such
servicing and administration which the Company may deem
necessary or desirable, consistent with the terms of this
Agreement and with Accepted Servicing Practices.
Consistent with the terms of this Agreement, the
Company may waive, modify or vary any term of any Mortgage
Loan or consent to the postponement of strict compliance with
any such term or in any manner grant indulgence to any
Mortgagor if in the Company's reasonable and prudent
determination such waiver, modification, postponement or
indulgence is not materially adverse to the Owner, provided,
however, that (unless the Mortgagor is in default with respect
to the Mortgage Loan or such default is, in the judgment of
the Company, imminent and the Company has obtained the prior
written consent of the Owner) the Company shall not permit any
modification with respect to any Mortgage Loan that would
change the Mortgage Interest Rate, defer or forgive the
payment of principal or interest, reduce or increase the
outstanding principal balance (except for actual payments of
principal) or change the final maturity date on such Mortgage
Loan. With respect to a Reconstitution Agreement, in the event
of any such modification which permits the deferral of
interest or principal payments on any Mortgage Loan, the
Company shall, on the Business Day immediately preceding the
Remittance Date in any month in which any such principal or
interest payment has been deferred, deposit in the Custodial
Account from its own funds, in accordance with Section 4.04,
the difference between (a) such month's principal and one
month's interest at the Mortgage Loan Remittance Rate on the
unpaid principal balance of such Mortgage Loan and (b) the
amount paid by the Mortgagor. With the approval of the Master
Servicer, the Company shall be entitled to reimbursement for
such advances only to the same extent as for P&I Advances made
pursuant to Section 5.03 hereunder. Without limiting the
generality of the foregoing, the Company shall continue, and
is hereby authorized and empowered, to execute and deliver on
behalf of itself and the Owner, all instruments of
satisfaction or cancellation, or of partial or full release,
discharge and all other comparable instruments, with respect
to the Mortgage Loans and with respect to the Mortgaged
Properties. If reasonably required by the Company, the Owner
shall furnish the Company with any powers of attorney and
other documents necessary or appropriate to enable the Company
to carry out its servicing and administrative duties under
this Agreement.
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Promptly after the execution of any assumption,
modification, consolidation or extension of any Mortgage loan,
the Company shall forward to the Master Servicer copies of any
documents evidencing such assumption, modification,
consolidation or extension. Notwithstanding anything to the
contrary contained in this Agreement, the Company shall not
make or permit any modification, waiver or amendment of any
term of any Mortgage Loan that would cause any REMIC created
under the Trust Agreement to fail to qualify as a REMIC or
result in the imposition of any tax under Section 860F(a) or
Section 860G(d) of the Code.
In servicing and administering the Mortgage Loans,
the Company shall employ procedures (including collection
procedures) and exercise the same care that it customarily
employs and exercises in servicing and administering mortgage
loans for its own account, giving due consideration to
Customary Servicing Procedures where such practices do not
conflict with the requirements of this Agreement, and the
Owner's reliance on the Company.
Absent written consultation and approval by the
Owner, as specified in this Section 4.01, the Company may take
actions relative to the servicing and administration of the
Mortgage Loans that are consistent with Customary Servicing
Procedures.
17. The parties hereto acknowledge that references to the "Owner" in the
first paragraph of Section 4.02 shall refer to the Master Servicer,
except that the expense of any environmental inspection or review at
the request of the Master Servicer shall be an expense of the Trust
Fund.
18. The parties hereto acknowledge that (i) the Custodial Account
referenced in Section 4.04 shall be titled "GMAC Mortgage Corporation
in trust for SASCO 2002-10H" and (ii) references to the Cutoff Date
shall mean the close of business on May 1, 2002.
19. The parties hereto acknowledge that (i) the Escrow Account referenced
in Section 4.06 shall be titled "GMAC Mortgage Corporation in trust for
SASCO 2002-10H."
20. Section 4.14 (Title, Management and Disposition of REO Property) is
hereby amended by (i) adding two new paragraphs after the second
paragraph thereof to read as follows:
In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage Loan, the
Company shall dispose of such REO Property not later than the end of
the third taxable year after the year of its acquisition by the Trust
Fund unless the Company has applied for and received a grant of
extension from the Internal Revenue Service to the effect that, under
the REMIC Provisions and any relevant proposed legislation and under
applicable state law, the applicable Trust REMIC may hold REO Property
for a longer period without adversely affecting the REMIC status of
such REMIC or causing the imposition of a federal or state tax upon
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such REMIC. If the Company has received such an extension, then the
Company shall continue to attempt to sell the REO Property for its fair
market value for such period longer than three years as such extension
permits (the "Extended Period"). If the Company has not received such
an extension and the Company is unable to sell the REO Property within
the period ending 3 months before the end of such third taxable year
after its acquisition by the Trust Fund or if the Company has received
such an extension, and the Company is unable to sell the REO Property
within the period ending three months before the close of the Extended
Period, the Company shall, before the end of the three year period or
the Extended Period, as applicable, (i) purchase such REO Property at a
price equal to the REO Property's fair market value or (ii) auction the
REO Property to the highest bidder (which may be the Company) in an
auction reasonably designed to produce a fair price prior to the
expiration of the three-year period or the Extended Period, as the case
may be. The Trustee shall sign any document or take any other action
reasonably requested by the Company which would enable the Company, on
behalf of the Trust Fund, to request such grant of extension.
Notwithstanding any other provisions of this Agreement, no REO
Property acquired by the Trust Fund shall be rented (or allowed to
continue to be rented) or otherwise used by or on behalf of the Trust
Fund in such a manner or pursuant to any terms that would: (i) cause
such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code; or (ii) subject any
Trust REMIC to the imposition of any federal income taxes on the income
earned from such REO Property, including any taxes imposed by reason of
Sections 860F or 860G(c) of the Code, unless the Company has agreed to
indemnify and hold harmless the Trust Fund with respect to the
imposition of any such taxes.
(ii) adding the following to the end of such Section:
Prior to acceptance by the Company of an offer to sell any REO
Property, the Company shall notify the Master Servicer of such offer in
writing which notification shall set forth all material terms of said
offer (each a "Notice of Sale"). The Master Servicer shall be deemed to
have approved the sale of any REO Property unless the Master Servicer
notifies the Company in writing, within five (5) days after its receipt
of the related Notice of Sale, that it disapproves of the related sale,
in which case the Company shall not proceed with such sale.
21. Section 5.02 (Statements to the Owner) is hereby amended and restated
in its entirety as follows:
Section 5.02 Statements to the Master Servicer.
Not later than the tenth calendar day of each month, the
Company shall furnish to the Master Servicer (a) a monthly remittance
and reporting format in the format currently being used and agreed upon
by the Company and by the Master Servicer as to the accompanying
remittance and the period ending on the last day of the preceding
Determination Date and (b) all such information required pursuant to
clause (a) above on a magnetic tape or other similar media reasonably
acceptable to the Master Servicer.
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Beginning with calendar year 2003, the Company shall prepare
and file any and all tax returns, information statements or other
filings for the portion of the tax year 2002 and the portion of
subsequent tax years for which the Company has serviced some or all of
the Mortgage Loans hereunder as such returns, information statements or
other filings are required to be delivered to any governmental taxing
authority or to the Master Servicer pursuant to any applicable law with
respect to the Mortgage Loans and the transactions contemplated hereby.
In addition, the Company shall provide the Master Servicer with such
information concerning the Mortgage Loans as is necessary for the
Master Servicer to prepare the Trust Fund's federal income tax return
as the Master Servicer may reasonably request from time to time.
22. Section 5.03 (P&I Advances by the Company) is hereby amended and
restated in its entirety as follows:
On the Business Day immediately preceding each Remittance
Date, the Company shall deposit in the Custodial Account from its own
funds an amount equal to all Monthly Payments (with interest adjusted
to the Mortgage Loan Remittance Rate) which were due on the Mortgage
Loans during the applicable Due Period and which were delinquent at the
close of business on the immediately preceding Determination Date or
which were deferred pursuant to Section 4.01. Any amounts held for
future distribution and so used to make P&I Advances shall be replaced
by the Company by deposit in the Custodial Account on or before any
future Remittance Date if funds in the Custodial Account on such
Remittance Date shall be less than payments to the Trust Fund required
to be made on such Remittance Date. The Company's obligation to make
such P&I Advances as to any Mortgage Loan will continue through the
last Monthly Payment due prior to the payment in full of the Mortgage
Loan, or through the last Remittance Date prior to the Remittance Date
for the distribution of all Liquidation Proceeds and other payments or
recoveries (including Insurance Proceeds and Condemnation Proceeds)
with respect to the Mortgage Loan unless the Company deems such P&I
Advances to be unrecoverable, as evidenced by an Officer's Certificate
of the Company delivered to the Master Servicer.
23. Section 6.03 (Servicing Compensation) is hereby amended by adding the
following sentence at the end of such Section:
The Company shall be required to pay all expenses
incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement thereof
except as specifically provided for herein.
24. Section 6.04 (Annual Statement as to Compliance) is hereby amended by
replacing "Owner" with "Xxxxxx Brothers Bank, FSB and Master Servicer".
25. Section 6.05 (Annual Independent Public Accountants' Servicing Report)
is hereby amended by replacing "Owner" with "Xxxxxx Brothers Bank, FSB
and Master Servicer".
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26. Sections 8.01 (Indemnification; Third Party Claims) is hereby amended
in its entirety to read as follows:
The Company shall indemnify the Trust Fund, the
Trustee and the Master Servicer and hold each of them harmless
against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related
costs, judgements, and any other costs, fees and expenses that
any of such parties may sustain directly resulting from the
failure of the Company to perform its duties and service the
Mortgage Loans in strict compliance with the terms of this
Agreement. The Company immediately shall notify Xxxxxx
Brothers Bank, FSB, the Master Servicer and the Trustee or any
other relevant party if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans, assume (with
the prior written consent of the indemnified party) the
defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge
and satisfy any judgement or decree which may be entered
against it or any of such parties in respect of such claim.
The Company shall follow any written instructions received
from the Trustee in connection with such claim. The Trustee,
from the assets of the Trust Fund, promptly shall reimburse
the Company for all amounts advanced by it pursuant to the
preceding sentence except when the claim is in any way relates
to the failure of the Company to service and administer the
Mortgage Loans in strict compliance with the terms of this
Agreement.
The Trust Fund shall indemnify the Company and hold
it harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other costs, fees
and expenses that the Company may sustain in any way related
to the failure of the Trustee or the Master Servicer to
perform its duties in compliance with the terms of this
Agreement.
In the event a dispute arises between an indemnified
party and the Company with respect to any of the rights and
obligations of the parties pursuant to this Agreement and such
dispute is adjudicated in a court of law, by an arbitration
panel or any other judicial process, then the losing party
shall indemnify and reimburse the winning party for all
attorney's fees and other costs and expenses related to the
adjudication of said dispute.
27. Section 9.01 (Events of Default) is hereby amended as follows:
(a) Amending Subsection 9.01(vii) in its entirety to read as follows:
"the Company at any time is neither a Xxxxxx Mae or Xxxxxxx Mac
approved servicer, and the Master Servicer has not terminated the
rights and obligations of the Company under this Agreement and replaced
the Company with a Xxxxxx Mae or Xxxxxxx Mac approved servicer within
30 days of the absence of such approval."
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(b) Replacing the last paragraph thereof with the following:
Upon receipt by the Company of such written notice,
all authority and power of the Company under this Agreement,
whether with respect to the Mortgage Loans or otherwise, shall
pass to and be vested in a successor Company appointed by the
Xxxxxx Brothers Bank, FSB and the Master Servicer. Upon
written request from the Seller, the Company shall prepare,
execute and deliver to the successor entity designated by the
Seller any and all documents and other instruments, place in
such successor's possession all Servicing Files, and do or
cause to be done all other acts or things necessary or
appropriate to effect the purposes of such notice of
termination, including but not limited to the transfer and
endorsement or assignment of the Mortgage Loans and related
documents, at the Company's sole expense. The Company shall
cooperate with Xxxxxx Brothers Bank, FSB and the Master
Servicer and such successor in effecting the termination of
the Company's responsibilities and rights hereunder, including
without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the
time be credited by the Company to the Custodial Account or
Escrow Account or thereafter received with respect to the
Mortgage Loans.
28. The parties hereto acknowledge that the word "Owner" in Section 9.02
(Waiver of Defaults) shall refer to the "Master Servicer with the prior
consent of the Trustee."
29. 10.02 (Termination Without Cause) is hereby amended by replacing the
first paragraph thereof with the following paragraphs:
Section 10.02 Termination Without Cause.
This Agreement shall terminate upon: (i) the later of
(a) the distribution of the final payment or liquidation
proceeds on the last Mortgage Loan to the Trust Fund (or
advances by the Company for the same), and (b) the disposition
of all REO Property acquired upon foreclosure of the last
Mortgage Loan and the remittance of all funds due hereunder,
or (ii) mutual consent of the Company, Xxxxxx Brothers Bank,
FSB and the Master Servicer in writing or (iii) at the sole
option of the Xxxxxx Brothers Bank, FSB, without cause, upon
30 days written notice. Any such notice of termination shall
be in writing and delivered to the Company by registered mail
to the address set forth at the beginning of this Agreement.
The Master Servicer, the Trustee and the Company shall comply
with the termination procedures set forth in Article X.
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In connection with any such termination referred to
in clause (ii) above, Xxxxxx Brothers Bank, FSB will be
responsible for reimbursing the Company for all unreimbursed
out-of-pocket Servicing Advances within 15 Business Days
following the date of termination and other reasonable and
necessary out-of-pocket costs associated with any transfer of
servicing.
In connection with any such termination referred to
in clause (iii) above, Xxxxxx Brothers Bank, FSB will be
responsible for paying a sum, as liquidated damages, in an
amount equal to (I) two percent (2%) of the aggregate Assumed
Principal Balance of the Mortgage Loans (as defined herein) if
such written notice is received by the Company on or before
the Business Day five years from the date such Mortgage Loans
were sold by the Company to Xxxxxx Brothers Bank, FSB, or (II)
one percent (1%) of the aggregate Assumed Principal Balance of
the Mortgage Loans if such written notice is received by the
Company after the Business Day five years from the date such
Mortgage Loans were sold by the Company to Xxxxxx Brothers
Bank, FSB (either amount shall be referred to as "Liquidated
Damages").
30. Section 11.01 (Successor to the Servicer) is hereby amended in its
entirety to read as follows:
Simultaneously with the termination of the Company's
responsibilities and duties under this Agreement pursuant to
Sections 8.03, 9.01 or 10.01(a)(ii), the Master Servicer
shall, in accordance with the provisions of the Trust
Agreement (i) succeed to and assume all of the Company's
responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor meeting the eligibility
requirements of this Agreement and (iii) and which shall
succeed to all rights and assume all of the responsibilities,
duties and liabilities of the Company under this Agreement
with the termination of the Company's responsibilities, duties
and liabilities under this Agreement. Any successor to the
Company that is not at that time a Servicer of other mortgage
loans for the Trust Fund shall be subject to the approval of
the Master Servicer, Xxxxxx Brothers Bank, FSB, the Trustee
and each Rating Agency (as such term is defined in the Trust
Agreement). Unless the successor servicer is at that time a
servicer of other mortgage loans for the Trust Fund, each
Rating Agency must deliver to the Trustee a letter to the
effect that such transfer of servicing will not result in a
qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates. In connection with such
appointment and assumption, the Master Servicer or Xxxxxx
Brothers Bank, as applicable, may make such arrangements for
the compensation of such successor out of payments on the
Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that
permitted the Company under this Agreement. In the event that
the Company's duties, responsibilities and liabilities under
this Agreement should be terminated pursuant to the
aforementioned sections, the Company shall discharge such
duties and responsibilities during the period from the date it
acquires knowledge of such termination until the effective
date thereof with the same degree of diligence and prudence
which it is obligated to exercise under this Agreement, and
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shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The
resignation or removal of the Company pursuant to the
aforementioned sections shall not become effective until a
successor shall be appointed pursuant to this Section 11.01
and shall in no event relieve the Company of the
representations and warranties made pursuant to Article X
shall be applicable to the Company notwithstanding any such
resignation or termination of the Company, or the termination
of this Agreement.
Within a reasonable period of time, but in no event
longer than 30 days of the appointment of a successor entity,
the Company shall prepare, execute and deliver to the
successor entity any and all documents and other instruments,
place in such successor's possession all Servicing Files, and
do or cause to be done all other acts or things necessary or
appropriate to effect the purposes of such notice of
termination. The Company shall cooperate with the Trustee and
the Master Servicer, as applicable, and such successor in
effecting the termination of the Company's responsibilities
and rights hereunder and the transfer of servicing
responsibilities to the successor Servicer, including without
limitation, the transfer to such successor for administration
by it of all cash amounts which shall at the time be credited
by the Company to the Custodial Account or any Escrow Account
or thereafter received with respect to the Mortgage Loans.
Any successor appointed as provided herein shall
execute, acknowledge and deliver to the Trustee, the Company
and the Master Servicer an instrument (i) accepting such
appointment, wherein the successor shall make an assumption of
the due and punctual performance and observance of each
covenant and condition to be performed and observed by the
Company under this Agreement, whereupon such successor shall
become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Company,
with like effect as if originally named as a party to this
Agreement. Any termination or resignation of the Company or
termination of this Agreement pursuant to Sections 10.01 or
10.02 shall not affect any claims that the Master Servicer or
the Trustee may have against the Company arising out of the
Company's actions or failure to act prior to any such
termination or resignation.
Within three (3) Business Days of the appointment of
a successor servicer, the Company shall deliver to the
successor servicer the funds in the Custodial Account and
Escrow Account and all Mortgage Loan Documents and related
documents and statements held by it hereunder and the Company
shall account for all funds and shall execute and deliver such
instruments and do such other things as may reasonably be
required to more fully and definitively vest in the successor
all such rights, powers, duties, responsibilities, obligations
and liabilities of the Company.
Upon a successor's acceptance of appointment as such,
the Company shall notify the Trustee and Master Servicer of
such appointment in accordance with the notice procedures set
forth herein.
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Except as otherwise provided in this Agreement, all
reasonable costs and expenses incurred in connection with any
transfer of servicing hereunder (whether as a result of
termination or removal of the Company or resignation of the
Company or otherwise), including, without limitation, the
costs and expenses of the Master Servicer or any other Person
in appointing a successor servicer, or of the Master Servicer
in assuming the responsibilities of the Company hereunder, or
of transferring the Servicing Files and the other necessary
data to the successor servicer shall be paid by the
terminated, removed or resigning Company from its own funds
without reimbursement.
31. A new Section 11.14 is hereby added to read as follows:
Section 11.14 Intended Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary,
the parties to this Agreement agree that it is appropriate, in
furtherance of the intent of such parties as set forth herein,
that the Master Servicer and the Trustee receive the benefit
of the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such
provisions. The Company shall have the same obligations to the
Master Servicer and the Trustee as if they were parties to
this Agreement, and the Master Servicer and the Trustee shall
have the same rights and remedies to enforce the provisions of
this Agreement as if they were parties to this Agreement. The
Company shall only take direction from the Master Servicer (if
direction by the Master Servicer is required under this
Agreement) unless otherwise directed by this Agreement.
Notwithstanding the foregoing, all rights and obligations of
the Master Servicer and the Trustee hereunder (other than the
right to indemnification) shall terminate upon termination of
the Trust Agreement and of the Trust Fund pursuant to the
Trust Agreement.
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EXHIBIT B
Sale and Servicing Agreement
[See Exhibit #99.20]
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EXHIBIT C
Mortgage Loan Schedule
[INTENTIONALLY OMITTED]
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