EXHIBIT 99.5
EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into as
of the 1st day of October, 2002, by and between XXXXXX BROTHERS BANK, FSB, a
federal savings bank (the "Seller" or "Xxxxxx Brothers Bank, FSB"), and CENDANT
MORTGAGE CORPORATION, a New Jersey corporation (the "Servicer") having an office
at 0000 Xxxxxx Xxx, Xx. Xxxxxx, Xxx Xxxxxx 00000, recites and provides as
follows:
RECITALS
WHEREAS, the Seller acquired certain first lien, residential mortgage loans
from the Servicer and Xxxxxx'x Gate Residential Mortgage Trust (formerly known
as Cendant Residential Mortgage Trust) ("Xxxxxx'x Gate"), which Mortgage Loans
were either originated or acquired by the Servicer or Xxxxxx'x Gate, pursuant to
a Mortgage Loan Flow Purchase, Sale & Servicing Agreement dated as of February
1, 2002 (the "Servicing Agreement"), by and among the Seller, as purchaser, the
Servicer, as seller and servicer and Xxxxxx'x Gate, as seller, which is annexed
hereto as Exhibit B.
WHEREAS, the Seller has conveyed the mortgage loans (the "Mortgage Loans")
identified on Exhibit C to Structured Asset Securities Corporation, a Delaware
special purpose corporation ("SASCO"), which in turn has conveyed the Mortgage
Loans to JPMorgan Chase Bank (the "Trustee"), pursuant to a trust agreement
dated as of October 1, 2002 (the "Trust Agreement"), by and among the Trustee,
as securities administrator, 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 Servicing Agreement.
WHEREAS, the Seller desires that the Servicer continue to service the
Mortgage Loans, and the Servicer has agreed to do so.
WHEREAS, the Seller and the Servicer agree that the provisions of the
Servicing Agreement, as amended hereby with respect to the Mortgage Loans, shall
continue to apply to the Mortgage Loans, and shall govern the Mortgage Loans for
so long as such 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 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 Servicing Agreement
incorporated by reference herein (regardless of whether such terms are defined
in the Servicing Agreement), shall have the meanings ascribed to such terms in
the Trust Agreement.
2. 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 Servicing Agreement, except
as otherwise provided herein and on Exhibit A hereto, and that the provisions of
the Servicing Agreement, as so modified, are and shall be a part of this
Agreement to the same extent as if set forth herein in full.
3. Master Servicing; Termination of Servicer. The Servicer, including any
successor servicer hereunder, shall be subject to the supervision of the Master
Servicer, which Master Servicer shall be obligated to ensure that the Servicer
services the Mortgage Loans in accordance with the provisions of this Agreement.
The Master Servicer, acting on behalf of the Trustee and the SASCO 2002-21A
Trust Fund (the "Trust Fund") created pursuant to the Trust Agreement, shall
have the same rights as Xxxxxx Brothers Bank, FSB as purchaser under the
Servicing Agreement to enforce the obligations of the Servicer under the
Servicing Agreement and the term "Purchaser" as used in the Servicing 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 Section 10.01 of the Servicing Agreement. Notwithstanding
anything herein to the contrary, in no event shall the Master Servicer assume
any of the obligations of Xxxxxx Brothers Bank, FSB under the Servicing
Agreement; and in connection with the performance of the Master Servicer's
duties hereunder, the parties and other signatories hereto agree that the Master
Servicer shall be entitled to all of the rights, protections and limitations of
liability afforded to the Master Servicer under the Trust Agreement.
4. Compliance with HOEPA. The Servicer is currently in compliance with the
Home Ownership and Equity Protection Act ("HOEPA") and will continue to operate
its business in compliance with HOEPA.
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 (other than those representations and
warranties made in Section 3.03 of the Servicing Agreement) 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 2002-21A
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 2002-21A
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
JPMorgan Chase Bank
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Corporate Trust Services Group
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 Xxxxxxx Xxxxxx, 0xx 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 address of its office as set forth in the first paragraph of
this Agreement.
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
CENDANT MORTGAGE CORPORATION,
as Servicer
By:
--------------------------------------
Name:
Title:
ACKNOWLEDGED BY:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:
------------------------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
JPMORGAN CHASE BANK,
as Trustee
By:
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title Assistant Vice President
EXHIBIT A
Modifications to the Servicing Agreement
1. Unless otherwise specified herein, for purposes of this Agreement, any
provisions of the Servicing Agreement, including definitions, relating to
(i) representations and warranties of the Purchaser, (ii) the sale and
purchase of the Mortgage Loans, (iii) Funding Dates and (iv) Specially
Serviced Mortgage Loans, shall be disregarded. The exhibits to the
Servicing Agreement and all references to such exhibits shall also be
disregarded.
2. For reporting purposes, a Mortgage Loan is "delinquent" when any payment
contractually due thereon has not been made by the close of business on the
Due Date therefor. Such Mortgage Loan is "30 days Delinquent" if such
payment has not been received by the close of business on the corresponding
day of the month immediately succeeding the month in which such payment was
first due, or, if there is no such corresponding day (e.g., as when a
30-day month follows a 31-day month in which a payment was due on the 31st
day of such month), then on the last day of such immediately succeeding
month. Similarly for "60 days Delinquent" and the second immediately
succeeding month and "90 days Delinquent" and the third immediately
succeeding month.
3. A new definition of "Adverse REMIC Event" is hereby added to Article I to
read as follows:
"Adverse REMIC Event": As defined in Article X of the Trust Agreement.
4. The definition of "Collection Account" is hereby amended to change the
words "the Purchaser of Mortgage Loans under the Mortgage Loan Flow
Purchase, Sale & Servicing Agreement, dated as of February 1, 2002" to
"SASCO 2002-21A Trust Fund".
5. The definition of "Custodial Agreement" in Article I is hereby amended in
its entirety to read as follows:
"Custodial Agreement" means the Custodial Agreement dated as of
October 1, 2002 between the Custodian and the Trustee.
6. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
"Custodian" means LaSalle Bank, National Association, any successor in
interest or any successor custodian appointed pursuant to the
Custodial Agreement.
7. The definition of "Cut Off Date" in Article I is hereby amended in its
entirety to read as follows:
"Cut Off Date": The close of business on October 1, 2002.
8. The definition of "Eligible Account" is hereby amended and restated in its
entirety to read as follows:
"Eligible Account": One or more accounts that are maintained with (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
A-1
equivalent by each Rating Agency; or (iii) Xxxxxx Brothers Bank, FSB,
a federal savings bank.
9. The definition of "Escrow Account" in Article I is hereby amended by
changing the words "the Purchaser under the Mortgage Loan Flow Purchase,
Sale & Servicing Agreement, dated as of February 1, 2002 (as amended), and
various mortgagors" therein to "SASCO 2002-21A Trust Fund".
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 setting forth
certain information with respect to the Mortgage Loans, which Mortgage
Loan Schedule is attached as Exhibit B to this Agreement.
11. A new definition of "Opinion of Counsel" is hereby added to Article I to
read as follows:
"Opinion of Counsel" A written opinion of counsel, who may be an
employee of the Servicer, that is reasonably acceptable to the Trustee
and the Master Servicer provided that any Opinion of Counsel relating
to (a) qualification of the Mortgage Loans in a REMIC or (b)
compliance with the REMIC Provisions, must be an opinion of counsel
reasonably acceptable to the Trustee and Xxxxxx Brothers Bank, FSB,
who (i) is in fact independent of any Seller, the Servicer and any
Master Servicer of the Mortgage Loans, (ii) does not have any material
direct or indirect financial interest in the Servicer or any Master
Servicer of the Mortgage Loans or in an affiliate of any such entity
and (iii) is not connected with any Seller, the Servicer or any Master
Servicer of the Mortgage Loans as an officer, employee, director or
person performing similar functions.
12. A new definition of "REMIC Provisions" is hereby added to Article I to read
as follows:
"REMIC Provisions: The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at
sections 860A through 860G of Subchapter M of Chapter 1 of the Code,
and related provisions, and regulations, including proposed
regulations and rulings, and administrative pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time."
13. The definition of "REO Property" in Article I is hereby amended by
replacing the word "Purchaser" with "Trustee on behalf of the Trust Fund".
14. The parties hereto acknowledge that Section 2.02 (Possession of Mortgage
Files) shall be inapplicable to this Agreement, as superseded by the
provisions of the Custodial Agreement and the Trust Agreement.
15. The parties hereto acknowledge that Section 2.05 (Transfer of Mortgage
Loans) of the Servicing Agreement shall be modified to indicate that the
Custodian shall prepare and execute at the direction of the Seller any note
endorsements in connection with transfer of the Mortgage Loans to the Trust
Fund as the owner of the Mortgage Loans and that the Seller shall pay for
any fees associated with the preparation and execution of such note
endorsements to the Trust Fund.
16. For purposes of servicing only, the second, third, fourth and fifth
paragraphs of Section 3.04 (Repurchase) are hereby restated to read as
follows:
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(3) Within 60 days of the earlier of either discovery by or notice to
the Servicer of any breach of a representation or warranty set forth
in Section 3.02 which materially and adversely affects the ability of
the Servicer to perform its duties and obligations under this
Agreement or otherwise materially and adversely affects the value of
the Mortgage Loans, the Mortgaged Property or the priority of the
security interest on such Mortgaged Property, the Servicer shall use
its best efforts promptly to cure such breach in all material respects
and, if such breach cannot be cured, the Servicer shall, at the
Trustee's option, assign the Servicer's rights and obligations under
this Agreement (or respecting the affected Mortgage Loans) to a
successor Servicer selected by the Master Servicer with the prior
consent and approval of the Trustee. Such assignment shall be made in
accordance with Section 12.01.
(4) In addition, the Servicer shall indemnify (from its own funds) the
Trustee, the Trust Fund and the Master Servicer and hold each of them
harmless against any costs resulting from any claim, demand, defense
or assertion based on or grounded upon, or resulting from, a breach of
the Servicer's representations and warranties contained in this
Agreement. It is understood and agreed that the remedies set forth in
this Section 3.04 constitute the sole remedies of the Master Servicer,
the Trust Fund and the Trustee respecting a breach of the foregoing
representations and warranties.
(5) Any cause of action against the Servicer relating to or arising
out of the breach of any representations and warranties made in
Section 3.01 shall accrue upon (i) discovery of such breach by the
Servicer or notice thereof by the Trustee or Master Servicer to the
Servicer, (ii) failure by the Servicer to cure such breach within the
applicable cure period, and (iii) demand upon the Servicer by the
Trustee or the Master Servicer for compliance with this Agreement
17. Section 5.01(3)(c)(3) is hereby amended by replacing the word "Purchaser"
with "Master Servicer".
18. Section 5.01(3) is hereby amended by removing the word "and" at the end of
subsection (e), replacing the period at the end of subsection (f) with a
semicolon and adding a new subsection (g) thereto to read as follows:
"(g) the Servicer shall not, unless default by the related Mortgagor
has occurred or is, in the reasonable judgment of the Servicer,
imminent, knowingly permit any modification, waiver or amendment of
any material term of any Mortgage Loan (including but not limited to
the interest rate, the principal balance, the amortization schedule,
or any other term affecting the amount or timing of payments on the
Mortgage Loan or the collateral therefor) unless the Servicer shall
have provided to the Master Servicer and the Trustee an Opinion of
Counsel in writing to the effect that such modification, waiver or
amendment would not cause an Adverse REMIC Event."
19. The parties hereto acknowledge that the reference to each Funding Date in
the second paragraph of Section 5.04 shall mean the "close of business on
October 1, 2002."
20. Section 5.04(10) is hereby amended in its entirety to read as follows:
"(10) interest on the amount of any Principal Prepayment at the
related Remittance Rate to the end of the month in which prepayment of
the related Mortgage Loan occurs, such deposit to be made from the
Servicer's own funds without reimbursement therefor."
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21. Section 5.13 (Management of REO Properties) is hereby amended by replacing
the second paragraph of such section thereof with the following:
"In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage Loan, the
Servicer 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 Servicer 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 Trust Fund 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 such
REMIC. If the Servicer has received such an extension, then the
Servicer 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 Servicer has not
received such an extension and the Servicer 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
Servicer has received such an extension, and the Servicer is unable to
sell the REO Property within the period ending three months before the
close of the Extended Period, the Servicer shall, before the end of
the three year period or the Extended Period, as applicable, (i)
purchase such REO Property at a price equal to the REO Property's fair
market value or (ii) auction the REO Property to the highest bidder
(which may be the Servicer) in an auction reasonably designed to
produce a fair price prior to the expiration of the three-year period
or the Extended Period, as the case may be. The Trustee shall sign any
document or take any other action reasonably requested by the Servicer
which would enable the Servicer, 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 the
Trust Fund 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 Servicer has
agreed to indemnify and hold harmless the Trust Fund with respect to
the imposition of any such taxes."
22. Section 5.15 (Realization Upon Specially Serviced Mortgage Loans and REO
Properties) is hereby amended by changing the words "2 years" in the last
sentence of the third paragraph thereof to "3 years".
23. Section 6.01 (Remittances) is hereby amended by replacing the word
"Purchaser" with "Master Servicer" and by replacing paragraphs (1) and (2)
of such section with the following:
"(1) On each Remittance Date, the Servicer shall remit to the
Purchaser (a) all amounts credited to the Collection Account as of the
close of business on the last day of the related Due Period (including
(1) the amount of any Principal Prepayment, together with interest
thereon at the related Remittance Rate to the end of the month in
which prepayment of the related Mortgage Loan occurs and (2) all
proceeds of any REO Disposition net of amounts payable to the Servicer
pursuant to Section 5.13), net of charges against or withdrawals from
the Collection Account in accordance with Section
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5.05, which charges against or withdrawals from the Collection Account
the Servicer shall make solely on such Remittance Date, plus (b) all
Monthly Advances, if any, which the Servicer is obligated to remit
pursuant to Section 6.03; provided that the Servicer shall not be
required to remit, until the next following Remittance Date, any
amounts attributable to Monthly Payments collected but due on a Due
Date or Dates subsequent to the related Due Period.
(2) 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:
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 2002-21A
24. Section 6.02 (Reporting) is hereby amended by replacing the word
"Purchaser" with "Master Servicer" and by replacing the first paragraph of
such section with the following:
Not later than the 10th calendar day of each month (or if such
calendar day is not a Business Day, the immediately succeeding
Business Day), the Servicer shall furnish to the Master Servicer (i) a
monthly remittance advice in the format set forth in Exhibit D-1
hereto and a monthly defaulted loan report in the format set forth in
Exhibit D-2 hereto (or in such other format mutually agreed between
the Servicer and the Master Servicer) relating to the period ending on
the last day of the preceding calendar month and (ii) all such
information required pursuant to clause (i) above on a magnetic tape
or other similar media reasonably acceptable to the Master Servicer.
25. Section 6.03 (Monthly Advances by Servicer) is hereby amended by adding the
following new sentence immediately following the second sentence of such
section:
Any Prepaid Monthly Payments 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.
26. Sections 7.04 (Annual Statement as to Compliance) and 7.05 (Annual
Independent Certified Public Accountants' Servicing Report) are hereby
amended by replacing the word "Purchaser" with "Master Servicer," replacing
the words "March 31" with "the last day of February" and replacing the
words "March 31, 2002" with "February 28, 2003."
27. Section 9.01 (Indemnification; Third Party Claims) is hereby amended by
changing the word "Purchaser" to "Master Servicer, Trustee and the Trust
Fund."
28. Section 9.02 (Merger or Consolidation of the Seller) is hereby amended by
changing the word "Purchaser" to "Trustee" where it appears in the proviso
to the second sentence thereof.
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29. Section 9.04 (Servicer Not to Resign) 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.
30. Section 10.01 (Events of Default) is hereby amended as follows:
(a) changing the words "3 Business Days" in Section 10.01(1) to "1 Business
Day";
(b) deleting the remainder of Section 10.01(1) and by changing the words
"45 days and 45-day" in Section 10.01(2) to "15 days and 15-day"
respectively; and
(c) amending subclause (6) as follows: "Cendant Mortgage at any time is
neither FNMA or FHLMC approved servicer, and the Master Servicer has not
terminated the rights and obligations of Cendant Mortgage under this
Agreement and replaced Cendant Mortgage with a FNMA or FHLMC approved
servicer within 30 days of the absence of such approval;".
31. The parties hereto acknowledge that the remedies set forth in Section 10.01
may be exercised by either the Master Servicer or the Trustee on behalf of
the Trust Fund.
32. Section 11.01 (Term and Termination) is hereby amended by changing the
references to "Purchaser" in the second and third paragraph of such section
to "Master Servicer."
33. Section 11.02 (Termination without Cause) is hereby deleted in its
entirety.
34. Section 12.01 (Successor to the Servicer) is hereby amended in its entirety
to read as follows:
Simultaneously with the termination of the Servicer's
responsibilities and duties under this Agreement (a) pursuant to
Sections 9.04, 10.01, 11.01 or 11.02, the Master Servicer shall, in
accordance with the provisions of the Trust Agreement (i) succeed to
and assume all of the Servicer's responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor meeting
the eligibility requirements of this Agreement set forth in Section
9.02 and which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Servicer under this
Agreement with the termination of the Servicer's responsibilities,
duties and liabilities under this Agreement. Any successor to the
Servicer that is not at that time a Servicer of other Mortgage Loans
for the Trust Fund shall be subject to the approval of the Master
Servicer, Xxxxxx 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
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letter to the effect that such transfer of servicing will not result
in a qualification, withdrawal or downgrade of the then-current rating
of any of the Certificates. In connection with such appointment and
assumption, the Master Servicer or the Depositor, as applicable, may
make such arrangements for the compensation of such successor out of
payments on the Mortgage Loans as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of
that permitted the Servicer under this Agreement. In the event that
the Servicer's duties, responsibilities and liabilities under this
Agreement should be terminated pursuant to the aforementioned
sections, the Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge
of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise
under this Agreement, and shall take no action whatsoever that might
impair or prejudice the rights or financial condition of its
successor. The resignation or removal of the Servicer pursuant to the
aforementioned sections shall not become effective until a successor
shall be appointed pursuant to this Section 12.01 and shall in no
event relieve the Servicer of the representations and warranties made
pursuant to Section 3.02 and the remedies available to the Trustee
under Sections 3.04 and 9.01, it being understood and agreed that the
provisions of such Sections 3.02, 3.04 and 9.01 shall be applicable to
the Servicer notwithstanding any such resignation or termination of
the Servicer, or the termination of this Agreement.
Within a reasonable period of time, but in no event longer than
30 days of the appointment of a successor entity, the Servicer shall
prepare, execute and deliver to the successor entity any and all
documents and other instruments, place in such successor's possession
all Servicing Files, and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice
of termination. The Servicer shall cooperate with the Trustee and the
Master Servicer, as applicable, and such successor in effecting the
termination of the Servicer's responsibilities and rights hereunder
and the transfer of servicing responsibilities to the successor
Servicer, including without limitation, the transfer to such successor
for administration by it of all cash amounts which shall at the time
be credited by the Servicer to the Custodial Account or any Escrow
Account or thereafter received with respect to the Mortgage Loans.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Trustee, the Servicer and the Master
Servicer an instrument (i) accepting such appointment, wherein the
successor shall make the representations and warranties set forth in
Section 3.02 and (ii) an assumption of the due and punctual
performance and observance of each covenant and condition to be
performed and observed by the Servicer under this Agreement, whereupon
such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer,
with like effect as if originally named as a party to this Agreement.
Any termination or resignation of the Servicer or termination of this
Agreement pursuant to Section 12.01 shall not affect any claims that
the Master Servicer or the Trustee may have against the Servicer
arising out of the Servicer's actions or failure to act prior to any
such termination or resignation.
The Servicer shall deliver within ten (10) 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
A-7
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.
35. A new Section 12.12 (Intended Third Party Beneficiaries) is hereby added to
read as follows:
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.
36. A new Section 12.13 (Request for Release) is hereby added to read as
follows:
Request for Release. When requesting a release of documents from the
Custodian, the Servicer shall use the form attached hereto as Exhibit
E.
A-8
EXHIBIT B
Servicing Agreement
[See Exhibit #99.7]
B-1
EXHIBIT C
Mortgage Loan Schedule
[Intentionally Omitted]
C-1
EXHIBIT D-1
STANDARD LAYOUT FOR MONTHLY REMITTANCE ADVICE
FIELD NAME DESCRIPTION FORMAT
---------- ----------- ------
INVNUM INVESTOR LOAN NUMBER Number no decimals
SERVNUM SERVICER LOAN NUMBER, REQUIRED Number no decimals
BEGSCHEDBAL BEGINNING SCHEDULED BALANCE FOR SCHED/SCHED Number two decimals
BEGINNING TRAIL BALANCE FOR ACTUAL/ACTUAL,
REQUIRED
SCHEDPRIN SCHEDULED PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED Number two decimals
ACTUAL PRINCIPAL COLLECTED FOR ACTUAL/ACTUAL,
REQUIRED, .00 IF NO COLLECTIONS
CURT1 CURTAILMENT 1 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT1DATE CURTAILMENT 1 DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
CURT1ADJ CURTAILMENT 1 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
CURT2 CURTAILMENT 2 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT2DATE CURTAILMENT 2 DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
CURT2ADJ CURTAILMENT 2 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
LIQPRIN PAYOFF, LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
OTHPRIN OTHER PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
PRINREMIT TOTAL PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
INTREMIT NET INTEREST REMIT, INCLUDE PAYOFF INTEREST, Number two decimals
.00 IF NOT APPLICABLE
TOTREMIT TOTAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
ENDSCHEDBAL ENDING SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED Number two decimals
ENDING TRIAL BALANCE FOR ACTUAL/ACTUAL
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDACTBAL ENDING TRIAL BALANCE Number two decimals
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDDUEDATE ENDING ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT DD-MMM-YY
ACTCODE 60 IF PAIDOFF, BLANK IF NOT APPLICABLE Number no decimals
ACTDATE ACTUAL PAYOFF DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
INTRATE INTEREST RATE, REQUIRED Number seven decimals
Example .0700000 for 7.00%
SFRATE SERVICE FEE RATE, REQUIRED Number seven decimals
Example .0025000 for .25%
PTRATE PASS THRU RATE, REQUIRED Number seven decimals
Example .0675000 for 6.75%
PIPMT P&I CONSTANT, REQUIRED Number two decimals
.00 IF PAIDOFF
X-0-0
XXXXXXX X-0
XXXXXXXX XXXXXX FOR MONTHLY DEFAULTED LOAN REPORT
1. Deal Identifier by Loan
2. SBO Loan Number
3. Loan Number
4. Investor Loan Number
5. Street Address
6. City
7. State
8. Zip Code
9. Original Loan Amount
10. Origination Date
11. First Payment Date
12. Current Loan Amount
13. Current Interest Rate
14. Current P&I Payment Amount
15. Scheduled Balance
16. Scheduled Due Date
17. Next Rate Adjustment Date
18. Next Payment Adjustment Date
19. Loan Term
20. Loan Type
21. Servicing Fee
22. Product Type
23. Property Type
24. Ownership Code
25. Actual Due Date
26. Delinquency Status
27. Reason for Default
28. FC Flag
29. Date Loan Reinstated
30. FC Suspended Date
31. Reason Suspended
32. FC Start Date (referral date)
33. Actual Notice of Intent Date
34. Actual First Legal Date
35. Date Bid Instructions Sent
36. Date F/C Sale Scheduled
37. Foreclosure Actual Sale Date
38. Actual Redemption End Date
39. Occupancy Status
40. Occupancy Status Date
41. Actual Eviction Start Date
42. Actual Eviction Complete Date
43. Loss Mit Workstation Status
44. Loss Mit Flag
45. Loss Mit Type
46. Loss Mit Start Date
47. Loss Mit Approval Date
D-2-1
48. Loss Mit Removal Date
49. REO Flag
50. Actual REO Start Date
51. REO List Date
52. REO List Price
53. Date REO Offer Received
54. Date REO Offer Accepted
55. REO Scheduled Close Date
56. REO Actual Closing Date
57. REO Net Sales proceeds
58. REO Sales Price
59. Paid Off Code
60. Paid in Full Date
61. MI Certificate Number
62. MI Cost
63. Other Advance Expenses
64. T&I Advances
65. Interest Advances
66. Liquidation Status
67. BK Atty Fees & Costs
68. FC Atty Fees & Costs
69. Eviction Atty Fees & Costs
70. Appraisal, BPO Costs
71. Property Preservation Fees
72. Actual Claim Filed Date
73. Actual Claim Amount Filed
74. Claim Amount Paid
75. Claim Funds Received Date
76. Realized Gain or Loss
77. BK Flag
78. Bankruptcy Chapter
79. Actual Bankruptcy Start Date
80. Actual Payment Plan Start Date
81. Actual Payment Plan End Date
82. Date POC Filed
83. Date Filed Relief/Dismissal
84. Relief/Dismissal Hearing Date
85. Date Relief/Dismissal Granted
86. Post Petition Due Date
87. Prepayment Flag
88. Prepayment Waived
89. Prepayment Premium Collected
90. Partial Prepayment Amount Collected
91. Prepayment Expiration Date
92. Origination Value Date
93. Origination Value Source
94. Original Value Amount
95. FC Valuation Amount
96. FC Valuation Source
97. FC Valuation Date
98. REO Value Source
99. REO Value (As-is)
100. REO Repaired Value
101. REO Value Date
102. Investor/Security Billing Date Sent
D-2-2
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
------------------
[Date]
[Custodian]
[Address]
Attention: [ ]
In connection with the administration of the mortgages held by you as
Custodian under a certain Custodial Agreement dated as of April 1, 2002, between
Bank One, National Association, as Trustee, and you, as Custodian (the
"Custodial Agreement"), the undersigned Servicer hereby requests a release of
the Mortgage File held by you as Custodian with respect to the following
described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
___ 1. Mortgage Loan paid in full. (The Servicer hereby certifies that all
amounts received in connection with the loan have been or will be credited to
the Collection Account or the Certificate Account (whichever is applicable)
pursuant to the Trust Agreement.)
___ 2. Mortgage Loan being foreclosed.
___ 3. Mortgage Loan repurchased. (The Servicer hereby certifies that the
Purchase Price has been credited to the Collection Account or the Certificate
Account (whichever is applicable) pursuant to the Trust Agreement.)
___ 4. Other. (Describe.)
The undersigned acknowledges that the above Mortgage File will be held by
the undersigned in accordance with the provisions of the Trust Agreement and
will be returned to you within ten (10) days of our receipt of the Mortgage
File, except if the Mortgage Loan has been paid in full, or repurchased (in
which case the Mortgage File will be retained by us permanently).
E-1
Capitalized terms used herein shall have the meanings ascribed to them
in the Custodial Agreement.
----------------------------------------
CENDANT MORTGAGE CORPORATION
By:
-------------------------------------
Name:
Title: Servicing Officer
E-2
