EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into as
of the 1st day of February 2002, by and between XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC., a Delaware corporation ("Xxxxxx Capital"), 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, National Bank of Commerce ("NBC") 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 2, 2001 (the "Servicing Agreement"), by and among
NBC, as purchaser, the Servicer, as seller and servicer and Xxxxxx'x Gate, as
seller, and attached hereto as Exhibit C.
WHEREAS, Xxxxxx Capital has agreed to purchase the mortgage loans
identified on Exhibit B (the "Mortgage Loans") from NBC pursuant to a certain
Assignment, Assumption and Recognition Agreement, dated as of February 8, 2002
by and among Xxxxxx Capital, NBC, the Servicer and Xxxxxx'x Gate ("Assignment
Agreement"), and attached hereto as Exhibit E.
WHEREAS, Xxxxxx Capital has conveyed the Mortgage Loans 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 February 1, 2002 (the
"Trust Agreement"), by and 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 Xxxxxx Capital pursuant to the Servicing Agreement.
WHEREAS, Xxxxxx Capital desires that the Servicer continue to service the
Mortgage Loans, and the Servicer has agreed to do so.
WHEREAS, Xxxxxx Capital 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, 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 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 2002-4H Trust
Fund (the "Trust Fund") created pursuant to the Trust Agreement, shall have the
same rights as Xxxxxx Capital 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 Article X of the Servicing Agreement. Notwithstanding anything
herein to the contrary, in no event shall the Master Servicer assume any of the
obligations of Xxxxxx Capital 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
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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 2002-4H
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 Number: 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:
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Services Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to Xxxxxx Capital hereunder
shall be delivered to Xxxxxx Capital at the following address:
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Xxxxxx Capital, a Division of Xxxxxx
Brothers Holdings Inc.
3 World Financial Centre, 8th Floor
New York, New York 10038
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Xxxxxx, Xxxxx & Xxxxxxx, LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
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.
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Executed as of the day and year first above written.
XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.,
as Owner
By:
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
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 Xxxxxxxx
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 the Mortgage Loans under the Mortgage Loan Flow
Purchase, Sale & Servicing Agreement, dated as of xx-xx-xx" to "SASCO
2002-4H Trust Fund".
5. A new definition of "Custodial Agreement" is hereby added to Article I
to read as follows:
"Custodial Agreement" means the Custodial Agreement dated as of
February 1, 2002 between the Custodian and the Trustee.
6. A new definition of "Custodian" is hereby added to Article I to read as
follows:
"Custodian" means U.S. Bank, National Association, any successor in
interest or any successor custodian appointed pursuant to the
Custodial Agreement.
7. A new definition of "Cut Off Date" is hereby added to Article I to read
as follows:
"Cut Off Date": The close of business on February 1, 2002.
8. A new definition of "Due Period" is hereby added to Article I to read
as follows:
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"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.
9. 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
equivalent by each Rating Agency; or (iii) Xxxxxx Brothers Bank,
FSB, a federal savings bank.
10. 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 xx-xx-xx (as amended) and various
mortgagors" to "SASCO 2002-4H Trust Fund".
11. 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.
12. 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 Capital, 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.
13. 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."
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14. 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 Xxxxxx Capital any
note endorsements in connection with transfer of the Mortgage Loans to the
Trust Fund as the owner of the Mortgage Loans and that Xxxxxx Capital
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:
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.
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.
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
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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 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
February 1, 2002."
20. Section 5.04(10) is hereby amended by adding to the end thereof the words
", such deposit to be made from the Servicer's own funds without
reimbursement therefor."
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
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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 Payoff, 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
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:
X-0
XXXxxxxx Xxxxx Xxxx
Xxx Xxxx, Xxx Xxxx
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
24. Section 6.02 (Reporting) is hereby amended by replacing the word
"Purchaser" with "Master Servicer" and by replacing the first sentence of
such section with the following:
On or before the 5th calendar day (or, if such day is not a
Business Day, on the immediately succeeding Business Day) of each
month during the term hereof, the Servicer shall furnish to the
Master Servicer (a) a monthly accounting report 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 most recently ended calendar
month and (b) all such information required pursuant to clause (a)
above on a magnetic tape or other similar media mutually acceptable
to the Servicer and 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".
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.
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
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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
"60 days" and 60-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 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 Capital, 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
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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.
A-8
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 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.
34. 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.
35. Request for Release. When requesting a release of documents from the
Custodian, the Servicer shall use the form attached hereto as Exhibit D.
A-9
EXHIBIT B
Mortgage Loan Schedule
[Intentionally Omitted]
B-1
EXHIBIT C
Servicing Agreement
[See Item #99.14]
C-1
EXHIBIT D
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 February 1, 2002,
between JPMorgan Chase Bank, 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).
D-1
Capitalized terms used herein shall have the meanings ascribed to them in
the Custodial Agreement.
-------------------------------------
CENDANT MORTGAGE CORPORATION
By: _________________________________
Name:
Title: Servicing Officer
D-2
EXHIBIT E
Assignment Agreement
[See Item #99.15]
E-1
