EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of January, 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, adjustable rate,
residential mortgage loans (the "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 March 29, 2001 (the "March 2001 Mortgage Loan
Flow Purchase, Sale & Servicing Agreement"), by and among the Seller, as
purchaser, the Servicer, as seller and servicer and Xxxxxx'x Gate, as seller and
a Mortgage Loan Flow Purchase, Sale & Servicing Agreement dated as of May 29,
2001 (the "May 2001 Mortgage Loan Flow Purchase, Sale & Servicing Agreement"),
by and among the Seller, as purchaser, the Servicer, as seller and servicer and
Xxxxxx'x Gate, as seller, as amended by Amendment No. 1 thereto, dated as of
June 18, 2001 ("Amendment Number 1").
WHEREAS, the Seller has conveyed the Mortgage Loans identified on
Exhibit B to Structured Asset Securities Corporation, a Delaware special purpose
corporation ("SASCO"), which in turn has conveyed the Mortgage Loans to Bank
One, National Association (the "Trustee"), pursuant to a trust agreement dated
as of January 1, 2002 (the "Trust Agreement"), by and among the Trustee, Xxxxx
Fargo Bank Minnesota, N.A., 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 March 2001 Mortgage Loan Flow Purchase,
Sale & Servicing Agreement, an Additional Collateral Servicing Agreement dated
as of March 29, 2001 (the "Additional Collateral Servicing Agreement"), by and
among the Seller, as purchaser and the Servicer, as servicer, the May 2001
Mortgage Loan Flow Purchase, Sale & Servicing Agreement and Amendment No. 1,
(the March 2001 Mortgage Loan Flow Purchase, the Additional Collateral Servicing
Agreement, the May 2001 Mortgage Loan Flow Purchase, Sale & Servicing Agreement
and Amendment No. 1 thereto shall hereinafter collectively be referred to as the
"Servicing Agreement"), all four of which are annexed hereto as Exhibit C.
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
2002-1A 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 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 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.
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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 2002-1A
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 2002-1A
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
Bank One, National Association
0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Global Trust Services
Telephone: (000) 000-0000
Fascimile: (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
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 & Bockius, LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
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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 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:
Title:
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:__________________________________________
Name:
Title:
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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 March 2001 Mortgage
Loan Flow Purchase, Sale & Servicing Agreement" or "the Purchaser of
Mortgage Loans under the May 2001 Mortgage Loan Flow Purchase, Sale &
Servicing Agreement", as applicable, to "SASCO 2002-1A 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 January 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 U.S. Bank Trust, 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 January 1, 2002.
8. A new definition of "Due Period" is hereby added to Article I to read
as follows:
"Due Period": With respect to each Remittance Date, the period
commencing on the first 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.
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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 March 29, 2001 (as amended) and
various mortgagors" or "the Purchaser under the Mortgage Loan Flow
Purchase, Sale & Servicing Agreement dated as of May 29, 2001 (as
amended) and various mortgagors", therein, as applicable, to "SASCO
2002-1A 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 C
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 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.
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."
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.
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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:
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
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."
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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 January 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 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:
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"(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:
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 2002-1A
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".
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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
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.
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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 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.
A-7
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.
35. 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. Request for Release. When requesting a release of documents from the
Custodian, the Servicer shall use the form attached hereto as
Exhibit D.
A-8
EXHIBIT B
Mortgage Loan Schedule
[Intentionally Omitted]
B-1
EXHIBIT C
Servicing Agreement
[See Exhibits 99.13, 99.14 and 99.15]
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 January 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).
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
