EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of January, 2002, by and between ▇▇▇▇▇▇ BROTHERS BANK, FSB
(the "Seller" or ▇▇▇▇▇▇ Brothers Bank, FSB"), a federal savings bank and
NATIONAL CITY MORTGAGE CO., New York corporation (referred to herein as the
"Servicer"), recites and provides as follows:
RECITALS
WHEREAS, the Seller acquired certain conventional, residential, fixed
rate, first lien mortgage loans (the "Mortgage Loans") from the Servicer, which
Mortgage Loans were either originated or acquired by the Servicer, pursuant to
the Seller's Warranties and Servicing Agreement between the Seller, as
Purchaser, and the Servicer, as Company, dated as of August 1, 2001 (for
Conventional Residential Fixed Rate Mortgage Loans, Group No. 2001-1)
(hereinafter, the "SWSA") and annexed hereto as Exhibit B.
WHEREAS, the Seller has conveyed certain Mortgage Loans identified on
Exhibit C hereto (the "Serviced Mortgage Loans") to Structured Asset Securities
Corporation, a Delaware special purpose corporation ("SASCO"), which in turn has
conveyed the Serviced Mortgage Loans to Bank One, National Association (the
"Trustee"), pursuant to a trust agreement, dated as of January 1, 2002 (the
"Trust Agreement"), among the Trustee, ▇▇▇▇▇ 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 Serviced Mortgage Loan are currently being serviced by the
Servicer pursuant to the SWSA.
WHEREAS, the Seller desires that the Servicer continue to service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
rights of the Seller and the Master Servicer to terminate the rights and
obligations of the Servicer hereunder as set forth herein and to the other
conditions set forth herein.
WHEREAS, the Seller and the Servicer agree that the provisions of the
SWSA shall apply to the Serviced Mortgage Loans, but only to the extent provided
herein and that this Agreement shall govern the Serviced Mortgage Loans for so
long as such Serviced Mortgage Loans remain subject to the provisions of the
Trust Agreement.
WHEREAS, the Master Servicer and any successor master servicer shall be
obligated, among other things, to supervise the servicing of the Serviced
Mortgage Loans on behalf of the Trustee, and shall have the right, under certain
circumstances, to terminate 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 SWSA
incorporated by reference herein (regardless if such terms are defined in the
SWSA), shall have the meanings ascribed to such terms in the Trust Agreement.
2. Custodianship. The parties hereto acknowledge that U.S. Bank Trust,
National Association will act as custodian of the Serviced Mortgage Files for
the Trustee pursuant to the Trust Agreement.
3. Servicing. The Servicer agrees, with respect to the Serviced
Mortgage Loans, to perform and observe the duties, responsibilities and
obligations that are to be performed and observed under the provisions of the
SWSA, except as otherwise provided herein and on Exhibit A hereto, and that the
provisions of the SWSA, as so modified, are and shall be a part of this
Agreement to the same extent as if set forth herein in full.
4. Trust Cut-off Date. The parties hereto acknowledge that by operation
of Section 4.05 and Section 5.01 of the SWSA, the remittance on February 18,
2002 to the Trust Fund is to include principal due after January 1, 2002 (the
"Trust Cut-off Date") plus interest, at the Mortgage Loan Remittance Rate
collected during the related Due Period exclusive of any portion thereof
allocable to a period prior to the Trust Cut-off Date, with the adjustments
specified in clauses (b), (c) and (d) Section 5.01 of the SWSA.
5. Master Servicing; Termination of Servicer. The Servicer, including
any successor servicer hereunder, shall be subject to the supervision of the
Master Servicer, which Master Servicer shall be obligated to ensure that the
Servicer services the Serviced Mortgage Loans in accordance with the provisions
of this Agreement. The Master Servicer, acting on behalf of the Trustee and the
SASCO 2002-1A Trust Fund (the "Trust Fund") created pursuant to the Trust
Agreement, shall have the same rights as the Seller under the SWSA to enforce
the obligations of the Servicer under the SWSA and the term "Purchaser" as used
in the SWSA in connection with any rights of the Purchaser shall refer to the
Trust Fund or, as the content 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 SWSA.
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer assume any of obligations of the Seller under the SWSA 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.
6. No Representations. Neither the Servicer nor the Master Servicer
shall be obligated or required to make any representations and warranties
regarding the characteristics of the Serviced Mortgage Loans (other than those
representations and warranties made by the Servicer in Section 3.02 of the SWSA)
in connection with the transactions contemplated by the Trust Agreement and
issuance of the Certificates issued pursuant thereto.
7. 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.
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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.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: E. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Master Servicing,
SASCO 2002-1A
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled to the following wire account:
JPMorgan Chase Bank
New York, New York
ABA#: ▇▇▇-▇▇▇-▇▇▇
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
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Global Trust Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fascimile: (▇▇▇) ▇▇▇-▇▇▇▇
All notices required to be delivered to the Seller hereunder shall be
delivered to the Seller, at the following address:
▇▇▇▇▇▇ Brothers Bank, FSB
3 World Financial Centre, 8th Floor
New York, New York 10038
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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All notices required to be delivered to the Servicer hereunder shall be
delivered to its office at the address for notices as set forth in the SWSA.
8. 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.
9. 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.
▇▇▇▇▇▇ BROTHERS BANK, FSB,
as Seller
By:
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
NATIONAL CITY MORTGAGE CO.,
as Servicer
By:
---------------------------------
Name:
Title:
Acknowledged:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:
-------------------------------------------------
Name:
Title:
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------------------------
Name:
Title:
EXHIBIT A
Modifications to the SWSA
1. Unless otherwise specified herein, any provisions of the SWSA,
including definitions, relating to (i) representations and warranties
relating to the Mortgage Loans and not relating to the servicing of the
Mortgage Loans, (ii) Mortgage Loan repurchase obligations, (iii) Whole
Loan and Pass-Through Transfers and Reconstitution, and (iv)
Assignments of Mortgage, shall be disregarded for purposes relating to
this Agreement. The exhibits to the SWSA and all references to such
exhibits shall also be disregarded.
2. The definition of "Custodial Agreement" in Article I is hereby amended
in its entirety to read as follows:
"Custodial Agreement" means the Trust Agreement.
3. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
"Custodian" means U.S. Bank Trust, National Association.
4. The definition of "Eligible Investments" in Article I is hereby amended
in its entirety to read as follows:
"Eligible Investments": Any one or more of the obligations and
securities listed below which investment provides for a date
of maturity not later than the Determination Date in each
month:
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by,
the United States of America or any agency or instrumentality
of the United States of America the obligations of which are
backed by the full faith and credit of the United States of
America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued
by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or
any agent of the Trustee, acting in its respective commercial
capacity) incorporated or organized under the laws of the
United States of America or any state thereof and subject to
supervision and examination by federal or state banking
authorities, so long as at the time of investment or the
contractual commitment providing for such investment the
commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company
or deposit institution, as the case may be) have been rated by
each Rating Agency in its highest short-term rating category
or one of its two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by GNMA, ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac with any registered broker/dealer subject to
Securities Investors' Protection Corporation jurisdiction or
any commercial bank insured by the FDIC, if such broker/dealer
or bank has an uninsured, unsecured and unguaranteed
obligation rated by each Rating Agency in its highest
short-term rating category;
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(iv) securities bearing interest or sold at a
discount issued by any corporation incorporated under the laws
of the United States of America or any state thereof which
have a credit rating from each Rating Agency, at the time of
investment or the contractual commitment providing for such
investment, at least equal to one of the two highest long-term
credit rating categories of each Rating Agency; provided,
however, that securities issued by any particular corporation
will not be Eligible Investments to the extent that investment
therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of the
Trust Fund to exceed 20% of the sum of the aggregate principal
balance of the Mortgage Loans; provided, further, that such
securities will not be Eligible Investments if they are
published as being under review with negative implications
from either Rating Agency;
(v) commercial paper (including both
non-interest-bearing discount obligations and interest-bearing
obligations payable on demand or on a specified date not more
than 180 days after the date of issuance thereof) rated by
each Rating Agency in its highest short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct
ownership interests in future interest or principal payments
on obligations of the United States of America or its agencies
or instrumentalities (which obligations are backed by the full
faith and credit of the United States of America) held by a
custodian in safekeeping on behalf of the holders of such
receipts; and
(viii) any other demand, money market, common trust
fund or time deposit or obligation, or interest-bearing or
other security or investment, (A) rated in the highest rating
category by each Rating Agency or (B) that would not adversely
affect the then current rating by each Rating Agency of any of
the Certificates. Such investments in this subsection (viii)
may include money market mutual funds or common trust funds,
including any fund for which the Trustee, the Master Servicer
or an affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, and/or custodian
or subcustodian, notwithstanding that (x) the Trustee, the
Master Servicer or an affiliate thereof charges and collects
fees and expenses from such funds for services rendered, (y)
the Trustee, the Master Servicer or an affiliate thereof
charges and collects fees and expenses for services rendered
pursuant to this Agreement, and (z) services performed for
such funds and pursuant to this Agreement may converge at any
time, provided, however, that no such instrument shall be an
Eligible Investment if such instrument evidences either (i) a
right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal
and interest payments derived from obligations underlying such
instrument and the principal and interest payments with
respect to such instrument provide a yield to maturity of
greater than 120% of the yield to maturity at par of such
underlying obligations.
5. The definition of "GNMA" is hereby added to Article I to immediately
follow the definition of "GEMICO":
"GNMA": The Government National Mortgage Association, or any
successor thereto.
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6. The definition of "Monthly Advance" in Article I is hereby amended in
its entirety to read as follows:
"Monthly Advance": With respect to each Remittance Date and
each Mortgage Loan, an amount equal to the Monthly Payment
(with the interest portion of such Monthly Payment adjusted to
the Mortgage Loan Remittance Rate) that was due on the
Mortgage Loan on the Due Date in the related Due Period, and
that (i) was delinquent at the close of business on the
related Determination Date and (ii) was not the subject of a
previous Monthly Advance, but only to the extent that such
amount is expected, in the reasonable judgment of the
Servicer, to be recoverable from collections or other
recoveries in respect of such Mortgage Loan. To the extent
that the Servicer determines that any such amount is not
recoverable from collections or other recoveries in respect of
such Mortgage Loan, such determination shall be evidenced by a
certificate of a Servicing Officer delivered to the Master
Servicer setting forth such determination and the procedures
and considerations of the Servicer forming the basis of such
determination, which shall include a copy of any broker's
price opinion and any other information or reports obtained by
the Servicer which may support such determinations.
7. The definition of "Mortgage Loan" in Article I is hereby amended in its
entirety to read as follows:
"Mortgage Loan": An individual servicing retained Mortgage
Loan which has been purchased from the Servicer by the Seller
and is subject to this Agreement being identified on the
Mortgage Loan Schedule to this Agreement, which Mortgage Loan
includes without limitation the Mortgage Loan documents, the
Monthly Reports, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition
Proceeds and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage
Loan.
8. 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 purchased from the Servicer by the Seller, which
Mortgage Loan Schedule is attached as Exhibit C to this
Agreement.
9. The definition of "Opinion of Counsel" in Article I is hereby amended
by adding the following proviso at the end of such definition:
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 who (i) is in fact independent of the Servicer and the
Master Servicer of the Mortgage Loans, (ii) does not have any
material direct or indirect financial interest in the Servicer
or the Master Servicer of the Mortgage Loans or in an
affiliate of either and (iii) is not connected with the
Servicer or the Master Servicer of the Mortgage Loans as an
officer, employee, director or person performing similar
functions.
10. The definition of "Prepayment Interest Shortfall Amount" is hereby
amended in its entirety to read as follows::
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Prepayment Interest Shortfall Amount: With respect to any
Mortgage Loan that was subject to a voluntary (not including
discounted payoffs) Principal Prepayment in full or in part
during any Due Period, which Principal Prepayment was applied
to such Mortgage Loan prior to such Mortgage Loan's Due Date
in such Due Period, the amount of interest (net of the related
Servicing Fee for Principal Prepayments in full only) that
would have accrued on the amount of such Principal Prepayment
during the period commencing on the date as of which such
Principal Prepayment was applied to such Mortgage Loan and
ending on the day immediately preceding such Due Date,
inclusive.
11. The definition of "Qualified Depository" is hereby amended in its
entirety to read as follows:
"Qualified Depository": Any of (i) a federal or
state-chartered depository institution the accounts of which
are insured by the FDIC and whose commercial paper, short-term
debt obligations or other short-term deposits are rated at
least "A-1+" by Standard & Poor's if the deposits are to be
held in the account for less than 30 days, or whose long-term
unsecured debt obligations are rated at least "AA-" by
Standard & Poor's if the deposits are to be held in the
account for more than 30 days, or (ii) the corporate trust
department of a federal or state-chartered depository
institution subject to regulations regarding fiduciary funds
on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), which, in either case, has
corporate trust powers, acting in its fiduciary capacity, or
(iii) ▇▇▇▇▇▇ Brothers Bank, F.S.B., a federal savings bank.
12. The definition of "Qualified GIC" is hereby added to Article I to
immediately follow the definition of "Qualified Depository", to read as
follows:
"Qualified GIC": A guaranteed investment contract or surety
bond providing for the investment of funds in the Custodial
Account and insuring a minimum, fixed or floating rate of
return on investments of such funds, which contract or surety
bond shall:
(a) be an obligation of an insurance company or other
corporation whose long-term debt is rated by each Rating
Agency in one of its two highest rating categories or, if such
insurance company has no long-term debt, whose claims paying
ability is rated by each Rating Agency in one of its two
highest rating categories, and whose short-term debt is rated
by each Rating Agency in its highest rating category;
(b) provide that the Servicer may exercise all of the
rights under such contract or surety bond without the
necessity of taking any action by any other Person;
(c) provide that if at any time the then current
credit standing of the obligor under such guaranteed
investment contract is such that continued investment pursuant
to such contract of funds would result in a downgrading of any
rating of the Servicer, the Servicer shall terminate such
contract without penalty and be entitled to the return of all
funds previously invested thereunder, together with accrued
interest thereon at the interest rate provided under such
contract to the date of delivery of such funds to the Trustee;
(d) provide that the Servicer's interest therein
shall be transferable to any successor Servicer or the Master
Servicer hereunder; and
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(e) provide that the funds reinvested thereunder and
accrued interest thereon be returnable to the Custodial
Account, as the case may be, not later than the Business Day
prior to any Determination Date.
13. The definition of "Servicing Fee" in Article I is hereby amended in its
entirety to read as follows:
"Servicing Fee": An amount equal to one-twelfth the product of
(a) the Servicing Fee Rate and (b) the outstanding principal
balance of the Mortgage Loan. The Servicing Fee is payable
solely from the interest portion (including recoveries with
respect to interest from Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, REO Disposition Proceeds) of
such Monthly Payment collected by the Servicer or as otherwise
provided under this Agreement.
14. The parties acknowledge that the fourth paragraph of Section 2.02 shall
be inapplicable to this Agreement.
15. The parties acknowledge that Section 2.03 (Delivery of Documents) shall
be superceded by the provisions of the Custodial Agreement.
16. Section 3.01(c) (No Conflicts) is hereby amended by deleting the words
"the acquisition of the Mortgage Loans by the Company, the sale of the
Mortgage Loans to the Purchaser or the transactions contemplated
hereby".
17. Section 3.01(f) (Ability to Perform) is hereby amended by deleting the
second sentence thereof.
18. Section 3.01(h) (No Consent Required) is hereby amended by deleting the
words "or the sale of the Mortgage Loans as evidenced by the
consummation of the transactions contemplated by this Agreement".
19. Section 3.01 (i) (Selection Process), Section 3.01 (j) (Pool
Characteristics), Section 3.01 (l) (Sale Treatment), Section 3.01 (n)
(No Broker's Fees'), Section 3.01 (o) (Origination) and Section 3.01(p)
(Fair Consideration) shall be inapplicable to this Agreement.
20. Section 3.03 (Remedies for Breach of Representations and Warranties) is
hereby amended in its entirety to read as follows:
It is understood and agreed that the representations
and warranties set forth in Section 3.01 (a) through (h), (k)
and (m) shall survive the engagement of the Servicer to
perform the servicing responsibilities hereunder and the
delivery of the Servicing Files to the Servicer and shall
inure to the benefit of the Trustee, the Trust Fund and the
Master Servicer. Upon discovery by either the Servicer, the
Master Servicer or the Trustee of a breach of any of the
foregoing representations and warranties 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 or the interest of the
Trustee or the Trust Fund, the party discovering such breach
shall give prompt written notice to the other.
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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 3.01 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 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
Loans) to a successor Servicer selected by the Trustee with
the prior consent and approval of the Master Servicer. 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 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 3.01 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.
21. Section 4.01 (Company to Act as Servicer) is hereby amended as follows:
(i) by deleting the first, second and third sentences of the
second paragraph of such section and replacing it with the following:
Consistent with the terms of this Agreement, the
Company may waive, modify or vary any term of any Mortgage
Loan or consent to the postponement of any such term or in any
manner grant indulgence to any Mortgagor if in the Company's
reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially
adverse to the Purchaser, provided, however, that unless the
Mortgagor is in default with respect to the Mortgage Loan or
such default is, in the judgment of the Company, imminent, the
Company shall not permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate,
forgive the payment of principal or interest, reduce or
increase the outstanding principal balance (except for actual
payments of principal) or change the final maturity date on
such Mortgage Loan.
(ii) by adding the following to the end of the second
paragraph of such section:
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Company
shall forward to the Master Servicer copies of any documents
evidencing such assumption, modification, consolidation or
extension. Notwithstanding anything to the contrary contained
in this Agreement, the Company shall not make or permit any
modification, waiver or amendment of any term of any Mortgage
Loan that would cause any REMIC created under the Trust
Agreement to fail to qualify as a REMIC or result in the
imposition of any tax under Section 860F(a) or Section 860G(d)
of the Code.
22. Section 4.04 (Establishment of and Deposits to Custodial Account) is
hereby amended as follows:
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(a) the words "National City Mortgage Corp in trust for the
Purchaser of Conventional Residential Fixed Rate Mortgage
Loans, Group 2001-1 and various Mortgagors" in the fourth,
fifth and sixth lines of the first sentence of the first
paragraph shall be replaced by the following words:
"National City Mortgage Co. in trust for the SASCO 2002-1A
Trust Fund".
(b) by amending clause (viii) to read as follows:
(viii) the amount of any Prepayment Interest
Shortfall Amount paid out of the Servicer's
own funds without any right to reimbursement
therefor;
23. Section 4.05 (Permitted Withdrawals From Custodial Account) is hereby
amended by replacing the last five lines of clause (ii) with the
following:
Servicer's right thereto shall be prior to the rights of the
Trust Fund; provided however, that in the event that the
Servicer determines in good faith that any unreimbursed
Monthly Advances will not be recoverable from amounts
representing late recoveries of payments of principal or
interest respecting the particular Mortgage Loan as to which
such Monthly Advance was made or from Liquidation Proceeds or
Insurance Proceeds with respect to such Mortgage Loan, the
Servicer may reimburse itself for such amounts from the
Custodial Account, it being understood, in the case of any
such reimbursement, that the Servicer's right thereto shall be
prior to the rights of the Trust Fund;
24. Section 4.06 (Establishment of and Deposits to Escrow Account) shall be
amended by deleting the words "National City Mortgage Corp., in trust
for the Purchaser of Conventional Residential Fixed Rate Mortgage
Loans, Group No. 2001-1 and various Mortgagors" in the fourth , fifth
and sixth lines of the first sentence of the first paragraph, and
replacing it with the following words:
"National City Mortgage Co. in trust for the SASCO 2002-1A
Trust Fund".
25. Section 4.16 (Title, Management and Disposition of REO Property) is
hereby amended by (i) replacing the reference to "one year" in the
seventh line of the second paragraph thereof with "three years" and
(ii) adding two new paragraphs after the second paragraph thereof to
read as follows:
In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage Loan, the
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 applicable Trust REMIC may hold REO Property
for a longer period without adversely affecting the REMIC status of
such REMIC or causing the imposition of a federal or state tax upon
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
7
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 any
Trust REMIC to the imposition of any federal income taxes on the income
earned from such REO Property, including any taxes imposed by reason of
Sections 860F or 860G(c) of the Code, unless the Servicer has agreed to
indemnify and hold harmless the Trust Fund with respect to the
imposition of any such taxes.
(iii) deleting the first sentence of the third paragraph thereof, (iv)
replacing the words "one" and "sentence" with "three" and "paragraph",
respectively, in the fifth line of the third paragraph thereto, and (v)
replacing the word "advances" in the sixth line of the fifth paragraph
thereof with "Monthly Advances";
(vi) by adding the following to the end of such Section:
Prior to acceptance by the Servicer of an offer to sell any
REO Property, the Servicer shall notify the Master Servicer of
such offer in writing which notification shall set forth all
material terms of said offer (each a "Notice of Sale"). The
Master Servicer shall be deemed to have approved the sale of
any REO Property unless the Master Servicer notifies the
Servicer in writing, within five (5) days after its receipt of
the related Notice of Sale, that it disapproves of the related
sale, in which case the Servicer shall not proceed with such
sale.
26. Section 5.01 (Remittances) is hereby amended by adding the following
after the second paragraph of such Section:
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#: ▇▇▇-▇▇▇-▇▇▇
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
27. Section 5.02 (Statements to Purchaser) is hereby amended in its
entirety to read as follows:
Section 5.02 Statements to Master Servicer.
8
Not later than the tenth calendar day of each month,
the Servicer shall furnish to the Master Servicer an
electronic file providing loan level accounting data for the
period ending on the last calendar day of the preceding month
in such form as is reasonably acceptable to the Master
Servicer and the Servicer.
28. Section 6.04 (Annual Statement as to Compliance) is hereby amended and
restated in its entirety to read as follows:
Section 6.04 Annual Officer's Certificate.
On or before July 31st of each year, beginning with
July 31, 2002, the Servicer, at its own expense, will deliver
to the Seller and the Master Servicer a Servicing Officer's
certificate stating, as to each signer thereof, that (i) a
review of the activities of the Servicer during such preceding
fiscal year and of performance under this Agreement has been
made under such officers' supervision, and (ii) to the best of
such officers' knowledge, based on such review, the Servicer
has fulfilled all its obligations under this Agreement for
such year, or, if there has been a default in the fulfillment
of all such obligations, specifying each such default known to
such officer and the nature and status thereof including the
steps being taken by the Servicer to remedy such default.
29. Section 6.05 (Annual Independent Public Accountants Servicing Report)
is hereby amended and restated in its entirety to read as follows:
Section 6.05 Annual Audit Report.
On or before July 31 of each year, beginning with
July 31, 2002, Servicer shall, at its own expense, cause a
firm of independent public accountants (who may also render
other services to Servicer), which is a member of the American
Institute of Certified Public Accountants, to furnish to the
Seller and Master Servicer (i) year-end audited (if available)
financial statements of the Servicer and (ii) a statement to
the effect that such firm has examined certain documents and
records for the preceding fiscal year (or during the period
from the date of commencement of such Servicer's duties
hereunder until the end of such preceding fiscal year in the
case of the first such certificate) and that, on the basis of
such examination conducted substantially in compliance with
the Uniform Single Attestation Program for Mortgage Bankers,
such firm is of the opinion that Servicer's overall servicing
operations have been conducted in compliance with the Uniform
Single Attestation Program for Mortgage Bankers except for
such exceptions that, in the opinion of such firm, the Uniform
Single Attestation Program for Mortgage Bankers requires it to
report, in which case such exceptions shall be set forth in
such statement.
30. Section 9.01 (Indemnification; Third Party Claims) is hereby amended by
deleting Subsection (a) and replacing it with the following:
(a) The Servicer shall indemnify the Seller, the Trust Fund,
the Trustee and the Master Servicer and hold each of them
harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other costs, fees
and expenses that any of such parties may sustain in any way
related to the failure of the Servicer to perform its duties
and service the Mortgage Loans in strict compliance with the
terms of this Agreement. The Servicer immediately shall notify
the Seller, the Master Servicer and the Trustee or any other
relevant party if a claim is made by a third party with
9
respect to this Agreement or the Mortgage Loans, assume (with
the prior written consent of the indemnified party, which
consent shall not be unreasonably withheld or delayed) the
defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge
and satisfy any judgment or decree which may be entered
against it or any of such parties in respect of such claim.
The Servicer shall follow any written instructions received
from the Trustee in connection with such claim. The Servicer
shall provide the Trustee with a written report of all
expenses and advances incurred by the Servicer pursuant to
this Section 9.01, and the Trustee from the assets of the
Trust Fund promptly shall reimburse the Servicer for all
amounts advanced by it pursuant to the preceding sentence
except when the claim is in any way relates to the failure of
the Servicer to service and administer the Mortgage Loans in
strict compliance with the terms of this Agreement or the
gross negligence, bad faith or willful misconduct of this
Servicer.
31. Section 10.01 (Event of Default) is hereby amended by:
(a) changing any reference to "Purchaser" to "Master
Servicer"
(b) changing the reference to "five days" to "two
Business Days" in subclause (i);
(c) adding the words "within the applicable cure period"
after the word "remedied" in the second line of the
second paragraph; and
(d) amending subclause (vii) as follows: "the Company at
any time is neither a ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac
approved servicer, and the Master Servicer has not
terminated the rights and obligations of the Company
under this Agreement and replaced the Company with a
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac approved servicer within 30
days of the absence of such approval; or".
32. Section 10.02 (Waiver of Defaults) is hereby amended by changing the
reference to "Purchaser" to "Master Servicer with the prior written
consent of the Trustee".
33. Section 11.01 (Termination) is hereby amended by restating subclause
(ii) thereof to read as below and adding the following sentence after
the first sentence of Section 11.01:
(ii) mutual consent of the Servicer and the Trustee in
writing, provided such termination is also acceptable
to the Master Servicer and the Rating Agencies.
At the time of any termination of the Servicer
pursuant to Section 11.01, the Servicer shall be entitled to
all accrued and unpaid Servicing Fees and unreimbursed
Servicing Advances and Monthly Advances; provided, however, in
the event of a termination for cause under Sections 10.01
hereof, such unreimbursed amounts shall not be reimbursed to
the Servicer until such amounts are received by the Trust Fund
from the related Mortgage Loans.
34. The first paragraph of Section 11.02 (Termination Without Cause) is
hereby amended by replacing the first reference to "Purchaser" with
"▇▇▇▇▇▇ Brothers Bank FSB" (with the prior consent of the Trustee)" and
by replacing all other references to "Purchaser" with "▇▇▇▇▇▇ Brothers
Bank FSB."
35. Section 12.01 (Successor to Company) is hereby amended in its entirety
to read as follows:
10
Simultaneously with the termination of the Servicer's
responsibilities and duties under this Agreement pursuant to
Sections 9.04, 10.01, 11.01(ii) 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, 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, the Seller, 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 Seller, 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 Sections 3.01 and 3.02 and the remedies
available to the Trust Fund under Section 3.03 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 Account or any Escrow Account or
thereafter received with respect to the Mortgage Loans.
11
Any successor appointed as provided herein shall
execute, acknowledge and deliver to the Trustee, the Servicer
and the Master Servicer an instrument (i) accepting such
appointment, wherein the successor shall make an assumption of
the due and punctual performance and observance of each
covenant and condition to be performed and observed by the
Servicer under this Agreement, whereupon such successor shall
become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer,
with like effect as if originally named as a party to this
Agreement. Any termination or resignation of the Servicer or
termination of this Agreement pursuant to Sections 9.04,
10.01, 11.01 or 11.02 shall not affect any claims that the
Master Servicer or the Trustee may have against the Servicer
arising out of the Servicer's actions or failure to act prior
to any such termination or resignation.
The Servicer shall deliver within three (3) Business
Days of the appointment of a successor Servicer the funds in
the Account and Escrow Account and all Collateral Files,
Credit Files and related documents and statements held by it
hereunder to the successor Servicer and the Servicer shall
account for all funds and shall execute and deliver such
instruments and do such other things as may reasonably be
required to more fully and definitively vest in the successor
all such rights, powers, duties, responsibilities, obligations
and liabilities of the Servicer.
Upon a successor's acceptance of appointment as such,
the Servicer shall notify the Trustee and Master Servicer of
such appointment in accordance with the notice procedures set
forth herein.
Except as otherwise provided in this Agreement, all
reasonable costs and expenses incurred in connection with any
transfer of servicing hereunder (whether as a result of
termination or removal of the Servicer or resignation of the
Servicer or otherwise), including, without limitation, the
costs and expenses of the Master Servicer or any other Person
in appointing a successor servicer, or of the Master Servicer
in assuming the responsibilities of the Servicer hereunder, or
of transferring the Servicing Files and the other necessary
data to the successor servicer shall be paid by the
terminated, removed or resigning Servicer from its own funds
without reimbursement.
36. Section 12.02 (Amendment) is hereby amended by replacing the words "by
the Company and the Purchaser by written agreement signed by the
Company and the Purchaser" with "by written agreement by the Servicer
and the Seller, with the written consent of the Master Servicer and the
Trustee".
37. Section 12.04 (Duration of Agreement) is hereby amended by deleting the
last sentence thereof.
38. Section 12.10 (Assignment by Purchaser) is hereby deleted in its
entirety.
39. Section 12.11 (No Personal Solicitation) is hereby amended by replacing
the words "the Purchaser" with "▇▇▇▇▇▇ Brothers Bank FSB" in each
instance.
40. Intended Third Party Beneficiaries. Notwithstanding any provision
herein to the contrary, the parties to this Agreement agree that it is
appropriate, in furtherance of the intent of such parties as set forth
herein, that the Master Servicer and the Trustee receive the benefit of
the provisions of this Agreement as intended third party beneficiaries
of this Agreement to the extent of such provisions. The Servicer shall
have the same obligations to the Master Servicer and the Trustee as if
they were parties to this Agreement, and the Master Servicer and the
Trustee shall have the same rights and remedies to enforce the
provisions of this Agreement as if they were parties to this Agreement.
The Servicer shall only take direction from the Master Servicer (if
direction by the Master Servicer is required under this Agreement)
unless otherwise directed by this Agreement. Notwithstanding the
foregoing, all rights and obligations of the Master Servicer and the
Trustee hereunder (other than the right to indemnification) shall
terminate upon termination of the Trust Agreement and of the Trust Fund
pursuant to the Trust Agreement.
12
EXHIBIT B
Seller's Warranties and Servicing Agreement
[See Exhibit 99.17]
EXHIBIT C
Schedule of Serviced Mortgage Loans
[Intentionally Omitted]