EXECUTION
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AURORA LOAN SERVICES INC.,
as Servicer
▇▇▇▇▇▇ CAPITAL, A DIVISION OF ▇▇▇▇▇▇ BROTHERS HOLDINGS INC.,
as Seller
and
AURORA LOAN SERVICES INC.,
as Master Servicer
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Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2000-3
SERVICING AGREEMENT
Dated as of July 1, 2000
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TABLE OF CONTENTS
Page
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ARTICLE I.
DEFINITIONS
ARTICLE II.
SELLER'S ENGAGEMENT OF SERVICER TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Servicing Files........12
Section 2.02 Books and Records............................................12
ARTICLE III.
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Servicer to Service..........................................13
Section 3.02 Collection of Mortgage Loan Payments.........................15
Section 3.03 Establishment of and Deposits to Custodial Account...........15
Section 3.04 Permitted Withdrawals From Custodial Account.................16
Section 3.05 Establishment of and Deposits to Escrow Account..............17
Section 3.06 Permitted Withdrawals From Escrow Account....................18
Section 3.07 Maintenance of FHA Mortgage Insurance and VA Guaranty........19
Section 3.08 Fidelity Bond and Errors and Omissions Insurance.............19
Section 3.09 Notification of Adjustments..................................19
Section 3.10 Completion and Recordation of Assignments of Mortgage
and FHA and VA Change Notices................................20
Section 3.11 Protection of Accounts.......................................20
Section 3.12 Title, Management and Disposition of REO Property............20
Section 3.13 Real Estate Owned Reports....................................22
Section 3.14 MERS.........................................................23
Section 3.15 [[Reserved.]]................................................23
ARTICLE IV.
PAYMENTS TO MASTER SERVICER
Section 4.01 Remittances..................................................23
Section 4.02 Statements to Master Servicer................................24
Section 4.03 Monthly Advances by Servicer.................................25
ARTICLE V.
GENERAL SERVICING PROCEDURES
Section 5.01 Servicing Compensation.......................................25
Section 5.02 Annual Audit Report..........................................26
Section 5.03 Annual Officer's Certificate.................................26
ARTICLE VI.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
Section 6.01 Representations, Warranties and Agreements of the Servicer...26
Section 6.02 Remedies for Breach of Representations and Warranties of
the Servicer.................................................28
Section 6.03 Additional Indemnification by the Servicer; Third
Party Claims.................................................29
ARTICLE VII.
THE SERVICER
Section 7.01 Merger or Consolidation of the Servicer......................29
Section 7.02 Limitation on Liability of the Servicer and Others...........30
Section 7.03 Limitation on Resignation and Assignment by the Servicer.....30
ARTICLE VIII.
TERMINATION
Section 8.01 Termination for Cause........................................31
Section 8.02 Termination Without Cause....................................33
ARTICLE IX.
MISCELLANEOUS PROVISIONS
Section 9.01 Successor to the Servicer....................................33
Section 9.02 Costs........................................................35
Section 9.03 Notices......................................................35
Section 9.04 Severability Clause..........................................36
Section 9.05 No Personal Solicitation.....................................36
Section 9.06 Counterparts.................................................37
Section 9.07 Place of Delivery and Governing Law..........................37
Section 9.08 Further Agreements...........................................37
Section 9.09 Intention of the Parties.....................................37
Section 9.10 Successors and Assigns; Assignment of Servicing Agreement....37
Section 9.11 Assignment by ▇▇▇▇▇▇ Capital.................................38
Section 9.12 [[Reserved.]]................................................38
Section 9.13 Waivers......................................................38
Section 9.14 Exhibits.....................................................38
Section 9.15 General Interpretive Principles..............................38
Section 9.16 Reproduction of Documents....................................39
EXHIBITS & SCHEDULES
EXHIBIT A Mortgage Loan Schedule
EXHIBIT B Custodial Account Letter Agreement
EXHIBIT C Escrow Account Letter Agreement
SCHEDULE 1 Servicer Recordation Fees
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement"), entered into as of the
1st day of July, 2000, by and between ▇▇▇▇▇▇ CAPITAL, A DIVISION OF ▇▇▇▇▇▇
BROTHERS HOLDINGS INC., a Delaware corporation (the "Seller" or "▇▇▇▇▇▇
Capital"), AURORA LOAN SERVICES INC., a Delaware corporation ("the Servicer"),
and AURORA LOAN SERVICES INC., as Master Servicer under the Trust Agreement
(as defined herein) recites and provides as follows:
RECITAL
WHEREAS, the Servicer and ▇▇▇▇▇▇ Brothers Bank, FSB are parties to a
Flow Servicing Agreement, dated as of August 31, 1999 (the "Flow Servicing
Agreement"), pursuant to which the Servicer services certain residential
adjustable and fixed rate mortgage loans identified on Schedule I hereto (the
"Mortgage Loans").
WHEREAS, pursuant to an Assignment, Assumption and Recognition
Agreement dated as of July 28, 2000, ▇▇▇▇▇▇ Brothers Bank, FSB has assigned
all of its rights, title and interest in the Mortgage Loans and the Flow
Servicing Agreement and delegated all of its obligations under such Agreement
to the Seller and the Seller has accepted such assignment and delegation.
WHEREAS, the Seller has conveyed the Mortgage Loans on a
servicing-retained basis to Structured Asset Securities Corporation (the
"Depositor"), which in turn has conveyed the Mortgage Loans to Bank One,
National Association, as trustee (the "Trustee") under a trust agreement dated
as of July 1, 2000 (the "Trust Agreement"), among the Trustee, Aurora Loan
Services Inc., as master servicer (together with any successor Master Servicer
appointed pursuant to the provisions of the Trust Agreement, the "Master
Servicer"), ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as securities administrator and
the Depositor.
WHEREAS, ▇▇▇▇▇▇ Capital desires that the Servicer service the
Mortgage Loans pursuant to this Agreement, and the Servicer has agreed to do
so, subject to the right of the Seller and of the Master Servicer to terminate
the rights and obligations of the Servicer hereunder at any time and to the
other conditions set forth herein.
WHEREAS, ▇▇▇▇▇▇ Capital and the Servicer agree that the provisions of
the Flow Servicing Agreement shall not apply to the Mortgage Loans for so long
as such Mortgage Loans remain subject to the provisions of the Trust
Agreement;
WHEREAS, the Master Servicer shall be obligated under the Trust
Agreement, among other things, to supervise the servicing of the 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 Servicing Agreement.
WHEREAS, ▇▇▇▇▇▇ Capital and the Servicer intend that the Master
Servicer, pursuant to Section 9.12, is an intended third party beneficiary of
this Agreement.
WHEREAS, ▇▇▇▇▇▇ Capital and the Servicer acknowledge and agree that
▇▇▇▇▇▇ Capital will assign all of its rights and delegate all of its
obligations hereunder (excluding ▇▇▇▇▇▇ Capital's rights and obligations as
owner of the servicing rights relating to the Mortgage Loans) to the Trustee,
and that each reference herein to either ▇▇▇▇▇▇ Capital or the Seller is
intended, unless otherwise specified, to mean the Seller or the Trustee, as
assignee, whichever is the owner of the Mortgage Loans from time to time.
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:
ARTICLE I.
DEFINITIONS
The following terms are defined as follows (except as otherwise
agreed in writing by the parties):
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
that service mortgage loans of the same type as such Mortgage Loans in the
jurisdiction where the related Mortgaged Property is located.
Act: The National Housing Act, as amended from time to time.
Adjustable Rate Mortgage Loan: A Mortgage Loan serviced pursuant to
this Agreement under which the Mortgage Interest Rate is adjusted from time to
time in accordance with the terms and provisions of the Mortgage Note.
Agreement: This Servicing Agreement and all amendments hereof and
supplements hereto.
Ancillary Income: All income derived from the Mortgage Loans, other
than Servicing Fees, including but not limited to late charges, fees received
with respect to checks or bank drafts returned by the related bank for
non-sufficient funds, Prepayment Penalty Amounts, assumption fees, optional
insurance administrative fees and all other incidental fees and charges.
Appraised Value: The value set forth in an appraisal made in
connection with the origination or the refinance of the related Mortgage Loan
as the value of the Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the transfer of the Mortgage to the party indicated therein, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering the Mortgage Loans secured by
Mortgaged Properties located in the same jurisdiction, if permitted by law.
Best Efforts: Efforts determined to be reasonably diligent by the
Seller or Servicer, as the case may be, in its sole discretion. Such efforts
do not require the Seller or Servicer, as the case may be, to enter into any
litigation, arbitration or other legal or quasi-legal proceeding, nor do they
require the Seller or Servicer, as the case may be, to advance or expend fees
or sums of money in addition to those specifically set forth in this
Agreement.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in the States of New
York, Florida and Minnesota are authorized or obligated by law or executive
order to be closed.
Certificates: Any or all of the Certificates issued pursuant to the
Trust Agreement.
Closing Date: July 28, 2000.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time or any successor statute thereto, and applicable U.S. Department
of the Treasury regulations issued pursuant thereto.
Condemnation Proceeds: All awards of settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan documents.
Conventional Loan: A conventional residential first or second lien
fixed or adjustable rate Mortgage Loan that is neither FHA insured nor VA
guaranteed.
Costs: For any Person, any claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses of such Person.
Custodial Account: The separate account or accounts created and
maintained pursuant to Section 3.03.
Custodial Agreement: The custodial agreement relating to custody of
all of the Mortgage Loans, among the Custodian, the Trustee, and the
Depositor, dated as of July 1, 2000.
Custodian: LaSalle National Bank, as Custodian pursuant to the
Custodial Agreement, and any successor thereto.
Cut-off Date: July 1, 2000.
Determination Date: With respect to each Distribution Date, the 18th
day of the month in which such Distribution Date occurs, or, if such 18th day
is not a Business Day, the next succeeding Business Day.
Depositor: Structured Asset Securities Corporation, or any successor
in interest.
Due Date: The day of the month on which the Monthly Payment is due on
a Mortgage Loan, exclusive of any days of grace. With respect to the Mortgage
Loans for which payment from the Mortgagor is due on a day other than the
first day of the month, such Mortgage Loans will be treated as if the Monthly
Payment is due on the first day of the immediately succeeding month.
Due Period: With respect to each Remittance Date, the period
commencing on the second day of the month immediately preceding the month of
the Remittance Date and ending on the first day of the month of the Remittance
Date.
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, FNMA or FHLMC with any registered broker/dealer
subject to Securities Investors' Protection Corporation jurisdiction or any
commercial bank insured by the FDIC, if such broker/dealer or bank has an
uninsured, unsecured and unguaranteed obligation rated by each Rating Agency
in its highest short-term rating category;
(iv) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or any
state thereof which have a credit rating from each Rating Agency, at the time
of investment or the contractual commitment providing for such investment, at
least equal to one of the two highest long-term credit rating categories of
each Rating Agency; provided, however, that securities issued by any
particular corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of the Trust Fund to
exceed 20% of the sum of the Aggregate Loan Balance and the aggregate
principal amount of all Eligible Investments in the Certificate Account;
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 either 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.
Errors and Omissions Insurance: Errors and Omissions Insurance to be
maintained by the Servicer in accordance with the FNMA Guides.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 3.05.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by the Mortgagor with the mortgagee pursuant to the Mortgage or any other
document.
Event of Default: Any event set forth in Section 8.01.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: The Federal Housing Administration, an agency within the United
States Department of Housing and Urban Development, or any successor thereto
and including the Federal Housing Commissioner and the Secretary of Housing
and Urban Development where appropriate under the FHA Regulations.
FHA Approved Mortgagee: A corporation or institution approved as a
mortgagee by FHA under the Act and applicable HUD regulations, and eligible to
own and service mortgage loans such as the FHA Loans.
FHA Insurance Contract: The contractual obligation of FHA respecting
the insurance of a Mortgage Loan.
FHA Loan: A residential Mortgage Loan that, as of the Cut-off Date
(or, in the case of a Qualifying Substitute Mortgage Loan, as of the date of
such substitution), is the subject of an FHA Insurance Contract as evidenced
by a mortgage insurance contract.
FHA Mortgage Insurance: Mortgage insurance authorized under the Act
and provided by the FHA.
FHA Regulations: Regulations promulgated by HUD under the National
Housing Act, codified in 24 Code of Federal Regulations, and other HUD
issuances relating to FHA Loans, including the related handbooks, circulars,
notices and mortgagee letters.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Fidelity Bond: A fidelity bond to be maintained by the Servicer in
accordance with the FNMA Guides.
Fixed Rate Mortgage Loan: Any individual Mortgage Loan serviced
pursuant to this Agreement as to which the Mortgage Interest Rate set forth in
the Mortgage Note is fixed for the term of such Mortgage Loan.
Fitch: Fitch IBCA, Inc., or any successor in interest.
FNMA: The Federal National Mortgage Association, or any successor
thereto.
FNMA Guides: The FNMA Selling Guide and the FNMA Servicing Guide and
all amendments or additions thereto.
GNMA: The Government National Mortgage Association, or any successor
thereto.
HUD: The Department of Housing and Urban Development, or any federal
agency or official thereof which may from time to time succeed to the
functions thereof with regard to FHA Mortgage Insurance. The term "HUD," for
purposes of this Agreement, is also deemed to include subdivisions thereof
such as the FHA and GNMA.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged
Property including FHA insurance proceeds and/or VA guaranty proceeds.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale or
otherwise, or the sale of the related REO Property, if the Mortgaged Property
is acquired in satisfaction of the Mortgage Loan.
Master Servicer: Aurora Loan Services Inc., or any successor in
interest, or if any successor master servicer shall be appointed as provided
in the Trust Agreement, then such successor master servicer.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor in interest thereto.
MERS Eligible Mortgage Loan: Any Mortgage Loan that has been
designated by the Servicer as recordable in the name of MERS.
MERS Mortgage Loan: Any Mortgage Loan as to which the related
Mortgage, or an Assignment of Mortgage, has been or will be recorded in the
name of MERS, as agent for the holder from time to time of the Mortgage Note.
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, and that (i) was delinquent at the close of
business on the first day of the month in which such Remittance Date occurs
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.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. or any successor in interest.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first or second lien on an unsubordinated
estate in fee simple in real property securing the Mortgage Note.
Mortgage Impairment Insurance Policy: A mortgage impairment or
blanket hazard insurance policy as described in the FNMA Guides.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note.
Mortgage Loan: An individual Mortgage Loan that is the subject of
this Agreement, each Mortgage Loan subject to this Agreement being identified
on the Mortgage Loan Schedule, which Mortgage Loan includes without limitation
the Mortgage Loan documents, the Monthly Payments, 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.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest remitted to the Master Servicer, which shall be
equal to the Mortgage Interest Rate minus the applicable Servicing Fee.
Mortgage Loan Schedule: A schedule of the Mortgage Loans setting
forth information with respect to such Mortgage Loans (including any MERS
identification number (if available) with respect to each MERS Mortgage Loan
or MERS Eligible Mortgage Loan), attached hereto as Exhibit A.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property securing repayment of the debt
evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Net Sale Proceeds: The proceeds from the sale of REO Property, net of
all expenses incurred by the Servicer in connection with such sale, including,
without limitation, legal fees and expenses, referral fees, brokerage
commissions, conveyance taxes and any other related expense.
Non-MERS Eligible Mortgage Loan: Any Mortgage Loan other than a MERS
Eligible Mortgage Loan.
Non-MERS Mortgage Loan: Any Mortgage Loan other than a MERS Mortgage
Loan.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Servicer, reasonably acceptable to the Seller, but which must
be independent outside counsel with respect to any such opinion of counsel
concerning (i) the non-recordation of Mortgage Loans pursuant to Section 2.02
hereof and (ii) federal income tax matters.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
PMI Policy: A policy of primary mortgage guaranty insurance issued by
a Qualified Insurer, as required by this Agreement with respect to certain
Mortgage Loans.
Prepayment Interest Excess: With respect to any Principal Prepayment
in full received from the first day through the sixteenth day of any month,
all amounts paid in respect of interest on such Principal Prepayment.
Prepayment Interest Shortfall Amount: With respect to any Remittance
Date and any Principal Prepayment (other than any such prepayment received on
the first of the month) received during the related Prepayment Period, the
difference between (i) one full month's interest at the applicable Mortgage
Loan Remittance Rate (giving effect to any applicable Relief Act Reduction) on
the outstanding principal balance of such Mortgage Loan immediately prior to
such prepayment and (ii) the amount of interest actually received with respect
to such Mortgage Loan in connection with such Principal Prepayment.
Prepayment Penalty Amount: With respect to any Remittance Date, all
premiums or charges paid by the obligors under the Mortgage Notes due to
Principal Prepayments collected by the Servicers during the immediately
preceding Prepayment Period.
Prepayment Period: With respect to any Remittance Date and any
partial Principal Prepayment, the period from the second day of the month
immediately preceding the month of such Remittance Date to the first day of
the month of such Remittance Date. With respect to any Remittance Date and a
full Principal Prepayment, the period from the seventeenth day of the month
immediately preceding the month of such Remittance Date to the sixteenth day
of the month of such Remittance Date.
Prime Rate: The prime rate published from time to time, as published
as the average rate in The Wall Street Journal Northeast Edition.
Principal Prepayment: Any Mortgagor payment of principal (other than
a Balloon Payment) or other recovery of principal on a Mortgage Loan that is
recognized as having been received or recovered in advance of its scheduled
Due Date and applied to reduce the principal balance of the Mortgage Loan in
accordance with the terms of the Mortgage Note.
Qualified Depository: Any of (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) ▇▇▇▇▇▇ Brothers Bank, F.S.B., a
federal savings bank.
Qualified Insurer: A mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by FNMA, FHLMC and GNMA.
Rating Agency: Each of S&P and Fitch.
Relief Act Reduction: With respect to any Mortgage Loan as to which
there has been a reduction in the amount of the interest collectible thereon
as a result of the application of the Soldiers' and Sailors' Civil Relief Act
of 1940, as amended, any amount by which interest collectible on such Mortgage
Loan for the Due Date in the related Due Period is less than the interest
accrued thereon for the applicable one-month period at the Mortgage Interest
Rate without giving effect to such reduction.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
Remittance Date: The 18th day (or if such 18th day is not a Business
Day, the first Business Day immediately following) of any month.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Disposition Proceeds: All amounts received with respect to an REO
Disposition pursuant to Section 3.12.
REO Property: A Mortgaged Property acquired by the Servicer on behalf
of the Trustee through foreclosure or by deed in lieu of foreclosure, pursuant
to Section 3.12.
Retained Interest: The meaning set forth in the Trust Agreement.
Retained Interest Holder: The meaning set forth in the Trust
Agreement.
Retained Interest Rate: The meaning set forth in the Trust Agreement.
S&P: Standard & Poor's Rating Services, a division of the ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., or any successor in interest.
Seller: ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers Holdings Inc.,
or its successors in interest and assigns.
Servicer: Aurora Loan Services Inc. or its successor in interest or
assigns or any successor to the Servicer under this Agreement as herein
provided.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) incurred in the performance by the Servicer of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, (b) any enforcement or
administrative or judicial proceedings, including foreclosures, (c) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, (d) taxes, assessments, water
rates, sewer rents and other charges which are or may become a lien upon the
Mortgaged Property, and PMI Policy premiums and fire and hazard insurance
coverage, (e) any losses sustained by the Servicer with respect to the
liquidation of the Mortgaged Property and (f) compliance with the obligations
pursuant to the provisions of the FNMA Guides.
Servicing Fee: An amount equal to the sum of (a) one-twelfth the
product of (i) a rate per annum equal to 0.25% and (ii) the outstanding
principal balance of such Mortgage Loan and (b) any Prepayment Interest Excess
Amounts. The obligation of the Trustee to pay the Servicing Fee is limited to,
and the Servicing Fee is payable solely from, the interest portion (including
recoveries with respect to interest from Liquidation Proceeds to the extent
permitted by Section 3.02 of this Agreement) of such Monthly Payment collected
by the Servicer, or as otherwise provided under this Agreement.
Servicing File: The items pertaining to a particular Mortgage Loan
including, but not limited to, the computer files, data disks, books, records,
data tapes, notes, and all additional documents generated as a result of or
utilized in originating and/or servicing each Mortgage Loan, which are held in
trust for the Trustee by the Servicer.
Servicing Officer: Any officer of the Servicer involved in or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Servicer to the
Master Servicer or Seller upon request, as such list may from time to time be
amended.
Trust Agreement: The Trust Agreement dated as of July 1, 2000, among
the Trustee, the Master Servicer, the Securities Administrator and the
Depositor.
Trust Fund: The trust fund established by the Trust Agreement, the
assets of which consist of the Mortgage Loans and any related assets.
Trustee: Bank One, National Association, or any successor in
interest, or if any successor trustee or co-trustee shall be appointed as
provided in the Trust Agreement, then such successor trustee or such
co-trustee, as the case may be.
VA: The Veterans Administration, an agency of the United States of
America, or any successor thereto including the Administrator of Veterans
Affairs.
VA Approved Lender: Those lenders which are approved by the VA to act
as a lender in connection with the origination of VA Loans.
VA Loan: A Mortgage Loan that, as of the Cut-off Date (or, in the
case of a Qualifying Substitute Mortgage Loan, as of the date of such
substitution), is the subject of a VA Loan Guaranty Agreement as evidenced by
a Loan Guaranty Certificate, or a Mortgage Loan which is a vendee loan sold by
the VA.
VA Loan Guaranty Agreement: The obligation of the United States to
pay a specific percentage of a Mortgage Loan (subject to a maximum amount)
upon default of the Mortgagor pursuant to the Servicemen's Readjustment Act,
as amended.
VA Loan Guaranty Certificate: The certificate evidencing a VA Loan
Guaranty Agreement.
VA Regulations: Regulations promulgated by the Veteran's
Administration pursuant to the Servicemen's Readjustment Act, as amended,
codified in 38 Code of Federal Regulations, and other VA issuances relating to
VA Loans, including related Handbooks, Circulars and Notices.
Any capitalized terms used and not defined in this Agreement shall
have the meanings ascribed to such terms in the Trust Agreement.
ARTICLE II.
SELLER'S ENGAGEMENT OF SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Servicing Files.
The Seller, by execution and delivery of this Agreement, does hereby
contract with the Servicer, subject to the terms of this Agreement, for the
servicing of the Mortgage Loans. On or before the Closing Date, the Seller
shall cause to be delivered the Servicing Files with respect to the Mortgage
Loans listed on the Mortgage Loan Schedule to the Servicer. Each Servicing
File delivered to a Servicer shall be held in trust by such Servicer for the
benefit of the Trustee, provided, however, that the Servicer shall have no
liability for any Servicing Files (or portions thereof) not delivered by the
Seller. The Servicer's possession of any portion of the Mortgage Loan
documents shall be at the will of the Trustee for the sole purpose of
facilitating servicing of the related Mortgage Loan pursuant to this
Agreement, and such retention and possession by the Servicer shall be in a
custodial capacity only. The ownership of each Mortgage Note, Mortgage, and
the contents of the Servicing File shall be vested in the Trustee and the
ownership of all records and documents with respect to the related Mortgage
Loan prepared by or which come into the possession of the Servicer shall
immediately vest in the Trustee and shall be retained and maintained, in
trust, by the Servicer at the will of the Trustee in such custodial capacity
only. The portion of each Servicing File retained by the Servicer pursuant to
this Agreement shall be segregated from the other books and records of the
Servicer and shall be appropriately marked to clearly reflect the ownership of
the related Mortgage Loan by the Trustee. The Servicer shall release from its
custody the contents of any Servicing File retained by it only in accordance
with this Agreement.
Section 2.02 Books and Records.
(a) Subject to Section 3.01(a) hereof, as soon as practicable after
the Closing Date or the date on which a Qualifying Substitute Mortgage Loan is
delivered pursuant to Section 2.05 of the Trust Agreement, as applicable (but
in no event more than 90 days thereafter except to the extent delays are
caused by the applicable recording office), the Servicer, at the expense of
the Depositor, shall cause the Mortgage or Assignment of Mortgage, as
applicable, with respect to each MERS Eligible Mortgage Loan, to be properly
recorded in the name of MERS in the public recording office in the applicable
jurisdiction, or shall ascertain that such have previously been so recorded.
(b) Subject to Section 3.01(a) hereof, an Assignment of Mortgage in
favor of the Trustee shall be recorded as to each Non-MERS Mortgage Loan
unless instructions to the contrary are delivered to the Servicer, in writing,
by the Trustee. Subject to the preceding sentence, as soon as practicable
after the Closing Date (but in no event more than 90 days thereafter except to
the extent delays are caused by the applicable recording office), the
Servicer, at the expense of the Depositor, shall cause to be properly recorded
in each public recording office where such Non-MERS Eligible Mortgage Loans
are recorded each Assignment of Mortgage.
(c) Additionally, the Servicer shall prepare and execute, at the
direction of the Trustee, any note endorsements relating to any of the
Non-MERS Mortgage Loans.
(d) All rights arising out of the Mortgage Loans shall be vested in
the Trustee, subject to the Servicer's right to service and administer the
Mortgage Loans hereunder in accordance with the terms of this Agreement. All
funds received on or in connection with a Mortgage Loan, other than the
Servicing Fee and other compensation to which the Servicer is entitled as set
forth herein, including but not limited to in Section 5.01 below, shall be
received and held by the Servicer in trust for the benefit of the Trustee
pursuant to the terms of this Agreement.
ARTICLE III.
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Servicer to Service.
The Servicer, as an independent contractor, shall service and
administer the Mortgage Loans from and after the Closing Date and shall have
full power and authority, acting alone, to do any and all things in connection
with such servicing and administration which the Servicer may deem necessary
or desirable, consistent with the terms of this Agreement and with Accepted
Servicing Practices, including taking all actions that a mortgagee is
permitted or required to take by the FHA or VA, with respect to any FHA Loans
or VA Loans, as the case may be. Except as set forth in this Agreement, the
Servicer shall service the Mortgage Loans in strict compliance with the
servicing provisions related to the FNMA MBS Program (Special Servicing
Option) of the FNMA Guides, which include, but are not limited to, provisions
regarding the liquidation of Mortgage Loans, the collection of Mortgage Loan
payments, the payment of taxes, insurance and other charges, the maintenance
of hazard insurance, the maintenance of Mortgage Impairment Insurance
Policies, the maintenance of Fidelity Bond and Errors and Omissions Insurance,
inspections, the restoration of Mortgaged Property, the maintenance of PMI
Policies, insurance claims, the title, management and disposition of REO
Property, permitted withdrawals with respect to REO Property, REO reports,
liquidation reports, and reports of foreclosures and abandonments of Mortgaged
Property, the transfer of Mortgaged Property, the release of Mortgage Loan
documents, annual statements, and examination of records and facilities. In
the event of any conflict, inconsistency or discrepancy between any of the
servicing provisions of this Agreement and any of the servicing provisions of
the FNMA Guides, the provisions of this Agreement shall control and be binding
upon the Seller, the Master Servicer and the Servicer.
The Seller and the Servicer additionally agree as follows:
(a) The Servicer shall (A) record or cause to be recorded the
Mortgage or the Assignment of Mortgage, as applicable, with respect to all
MERS Eligible Mortgage Loans, in the name of MERS, or shall ascertain that
such have previously been so recorded; (B) prepare or cause to be prepared all
Assignments of Mortgage with respect to all Non-MERS Eligible Mortgage Loans;
(C) record or cause to be recorded, subject to Section 2.02(b) hereof, all
Assignments of Mortgage with respect to Non-MERS Mortgage Loans in the name of
the Trustee; (D) pay the recording costs pursuant to Section 2.02 hereof;
and/or (E) track such Mortgages and Assignments of Mortgage to ensure they
have been recorded. The Servicer shall be entitled to be paid by the Seller
the fees set forth on Schedule 1 hereto for the preparation and recordation of
the Mortgages and Assignments of Mortgage. After the expenses of such
recording costs pursuant to Section 2.02 hereof shall have been paid by the
Servicer, the Servicer shall submit to the Depositor a reasonably detailed
invoice for reimbursement of recording costs it incurred hereunder.
(b) The Servicer shall, in accordance with the relevant provisions of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ National Affordable Housing Act of 1990, as the same may
be amended from time to time, and the regulations provided in accordance with
the Real Estate Settlement Procedures Act, provide notice to the Mortgagor of
each Mortgage of the transfer of the servicing thereto to the Servicer.
(c) The Servicer shall be responsible for the preparation of and
costs associated with notifications to Mortgagors of the assumption of
servicing by the Servicer.
Consistent with the terms of this Agreement, the Servicer may waive
any late payment charge, assumption fee or other fee that may be collected in
the ordinary course of servicing the Mortgage Loans. The Servicer shall not
make any future advances to any obligor under any Mortgage Loan, and (unless
the Mortgagor is in default with respect to the Mortgage Loan or such default
is, in the judgment of the Servicer, reasonably foreseeable) the Servicer
shall not permit any modification of any material term of any Mortgage Loan,
including any modification that would change the Mortgage Interest Rate, defer
or forgive the payment of principal or interest, reduce or increase the
outstanding principal balance (except for actual payments of principal) or
change the final maturity date on such Mortgage Loan. In the event of any such
modification which permits the deferral of interest or principal payments on
any Mortgage Loan, the Servicer shall, on the Business Day immediately
preceding the Remittance Date in any month in which any such principal or
interest payment has been deferred, make a Monthly Advance in accordance with
Section 4.03, in an amount equal to the difference between (a) such month's
principal and one month's interest at the Mortgage Loan Remittance Rate on the
unpaid principal balance of such Mortgage Loan and (b) the amount paid by the
Mortgagor. The Servicer shall be entitled to reimbursement for such advances
to the same extent as for all other advances made pursuant to Section 4.03.
Without limiting the generality of the foregoing, the Servicer shall continue,
and is hereby authorized and empowered, to execute and deliver on behalf of
itself and the Trustee, all instruments of satisfaction or cancellation, or of
partial or full release, discharge and all other comparable instruments, with
respect to the Mortgage Loans and with respect to the Mortgaged Properties.
Upon the request of the Servicer, the Trustee shall execute and deliver to the
Servicer any powers of attorney and other documents, furnished to it by the
Servicer and reasonably satisfactory to the Trustee, necessary or appropriate
to enable the Servicer to carry out its servicing and administrative duties
under this Agreement.
Notwithstanding anything to the contrary in this Agreement, the
Servicer shall not (unless the Servicer determines, in its own discretion,
that there exists a situation of extreme hardship to the Mortgagor), waive any
premium or penalty in connection with a prepayment of principal of any
Mortgage Loan, and shall not consent to the modification of any Mortgage Note
to the extent that such modification relates to payment of a prepayment
premium or penalty.
In servicing and administering any FHA Loans or VA Loans, the
Servicer shall comply strictly with the National Housing Act and the FHA
Regulations, the Servicemen's Readjustment Act, the VA Regulations and
administrative guidelines issued thereunder or pursuant thereto, and, to the
extent permitted hereunder, promptly discharge all of the obligations of the
mortgagee thereunder and under each Mortgage including the payment of any
fees, premiums and charges and the timely giving of notices.
In servicing and administering the Mortgage Loans, the Servicer shall
employ procedures (including collection procedures) and exercise the same care
that it customarily employs and exercises in servicing and administering
mortgage loans for its own account, giving due consideration to Accepted
Servicing Practices where such practices do not conflict with the requirements
of this Agreement, the FNMA Guides, the FHA Regulations and the VA
Regulations, and the Master Servicer's and the Seller's reliance on the
Servicer.
Section 3.02 Collection of Mortgage Loan Payments.
Continuously from the Closing Date until the date each Mortgage Loan
ceases to be subject to this Agreement, the Servicer shall proceed diligently
to collect all payments due under each of the Mortgage Loans when the same
shall become due and payable and shall take special care in ascertaining and
estimating Escrow Payments and all other charges that will become due and
payable with respect to the Mortgage Loans and each related Mortgaged
Property, to the end that the installments payable by the Mortgagors will be
sufficient to pay such charges as and when they become due and payable.
Section 3.03 Establishment of and Deposits to Custodial Account.
The Servicer shall segregate and hold all funds collected and
received pursuant to the Mortgage Loans separate and apart from any of its own
funds and general assets and shall establish and maintain one or more
Custodial Accounts, in the form of time deposit or demand accounts, titled as
directed by the Master Servicer. The Custodial Account shall be established
with a Qualified Depository. Any funds deposited in the Custodial Account may
be invested in Eligible Investments subject to the provisions of Section 3.11
hereof. Funds deposited in the Custodial Account may be drawn on by the
Servicer in accordance with Section 3.04. The creation of any Custodial
Account shall be evidenced by a letter agreement in the form of Exhibit B. A
copy of such certification or letter agreement shall be furnished to the
Master Servicer and, upon request, to any subsequent owner of the Mortgage
Loans.
The Servicer shall deposit in the Custodial Account on a daily basis,
and retain therein, the following collections received by the Servicer and
payments made by the Servicer after the Closing Date:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds;
(v) all Condemnation Proceeds that are not applied to the
restoration or repair of the Mortgaged Property or released to the Mortgagor;
(vi) any Prepayment Interest Shortfall Amount;
(vii) all Advances made by the Servicer pursuant to Section
4.03;
(viii) any amounts required to be deposited by the Servicer in
connection with the deductible clause in any blanket hazard insurance policy;
(ix) any amounts received with respect to or related to any REO
Property or REO Disposition Proceeds; and
(x) any other amount required hereunder to be deposited by the
Servicer in the Custodial Account.
Any interest paid on funds deposited in the Custodial Account by the
depository institution shall accrue to the benefit of the Servicer and the
Servicer shall be entitled to retain and withdraw such interest from the
Custodial Account pursuant to Section 3.04. Additionally, any other benefit
derived from the Custodial Account associated with the receipt, disbursement
and accumulation of principal, interest, taxes, hazard insurance, mortgage
insurance, etc. shall accrue to the Servicer.
Section 3.04 Permitted Withdrawals From Custodial Account.
The Servicer shall, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(i) to make payments to the Master Servicer in the amounts and
in the manner provided for in Section 4.01;
(ii) in the event the Servicer has elected not to retain the
Servicing Fee out of any Mortgagor payments on account of interest or other
recovery of interest with respect to a particular Mortgage Loan (including
late collections of interest on such Mortgage Loan, or interest portions of
Insurance Proceeds or Liquidation Proceeds) prior to the deposit of such
Mortgagor payment or recovery in the Custodial Account, to pay to itself the
related Servicing Fee from all such Mortgagor payments on account of interest
or other such recovery for interest with respect to that Mortgage Loan;
(iii) to pay itself investment earnings on funds deposited in
the Custodial Account;
(iv) to clear and terminate the Custodial Account upon the
termination of this Agreement;
(v) to transfer funds to another Qualified Depository in
accordance with Section 3.11 hereof;
(vi) to invest funds in certain Eligible Investments in
accordance with Section 3.11 hereof;
(vii) to reimburse itself for Monthly Advances of the
Servicer's funds made pursuant to Section 4.03, the Servicer's right to
reimburse itself pursuant to this subclause (vii) with respect to any Mortgage
Loan is limited to amounts received on or in respect of the related Mortgage
Loan which represent late recoveries of payments of principal or interest with
respect to which a Monthly Advance was made, it being understood that, in the
case of any such reimbursement, the Servicer's right thereto shall be prior to
the rights of the Trust Fund; and
(viii) to reimburse itself for unreimbursed Servicing Advances,
and for any unpaid Servicing Fees, the Servicer's right to reimburse itself
pursuant to this subclause (viii) with respect to any Mortgage Loan being
limited to related Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and other amounts received in respect of
the related REO Property, and such other amounts as may be collected by the
Servicer from the Mortgagor or otherwise relating to the Mortgage Loan, it
being understood that, in the case of any such reimbursement, the Servicer's
right thereto shall be prior to the rights of the Trust Fund.
Section 3.05 Establishment of and Deposits to Escrow Account.
The Servicer shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan constituting Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts, in the form of time deposit or demand
accounts, titled as directed by the Master Servicer. The Escrow Accounts shall
be established with a Qualified Depository in a manner that shall provide
maximum available insurance thereunder. Funds deposited in the Escrow Account
may be drawn on by the Servicer in accordance with Section 3.06. The creation
of any Escrow Account shall be evidenced by a letter agreement in the form of
Exhibit C. A copy of such certification or letter agreement shall be furnished
to the Master Servicer and, upon request, to any subsequent owner of the
Mortgage Loans.
The Servicer shall deposit in the Escrow Account or Accounts on a
daily basis, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as
required under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds or
Condemnation Proceeds that are to be applied to the restoration or repair of
any Mortgaged Property.
The Servicer shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 3.06. The Servicer shall retain any interest paid on funds deposited
in the Escrow Account by the depository institution, other than interest on
escrowed funds required by law to be paid to the Mortgagor. Additionally, any
other benefit derived from the Escrow Account associated with the receipt,
disbursement and accumulation of principal, interest, taxes, hazard insurance,
mortgage insurance, etc. shall accrue to the Servicer. To the extent required
by law, the Servicer shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or that
interest paid thereon is insufficient for such purposes.
Section 3.06 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the
Servicer only:
(i) to effect timely payments of ground rents, taxes,
assessments, water rates, sewer rents, mortgage insurance premiums,
condominium charges, fire and hazard insurance premiums or other items
constituting Escrow Payments for the related Mortgage;
(ii) to refund to any Mortgagor any funds found to be in excess
of the amounts required under the terms of the related Mortgage Loan;
(iii) for transfer to the Custodial Account and application to
reduce the principal balance of the Mortgage Loan in accordance with the terms
of the related Mortgage and Mortgage Note;
(iv) for application to restoration or repair of the Mortgaged
Property in accordance with the FNMA Guides;
(v) for transfer to the Custodial Account of fire and hazard
insurance proceeds and Escrow Payments with respect to any FHA Loan or VA
Loan, where the FHA or the VA, respectively, has directed application of funds
as a credit against the proceeds of the FHA Insurance Contract or VA Loan
Guaranty Agreement;
(vi) to pay to the Servicer, or any Mortgagor to the extent
required by law, any interest paid on the funds deposited in the Escrow
Account; and
(vii) to clear and terminate the Escrow Account on the
termination of this Agreement.
Section 3.07 Maintenance of FHA Mortgage Insurance and VA Guaranty.
With respect to any FHA Loans and VA Loans, the Servicer shall
maintain and keep the FHA Mortgage Insurance and the VA Guaranty,
respectively, in full force and effect throughout the term of this Agreement
and discharge its obligations arising out of FHA Mortgage Insurance and the VA
Guaranty Certificate. The Servicer hereby agrees that it shall be liable to
the Trustee for any loss, liability or expense incurred by the Trust Fund by
reason of any FHA Mortgage Insurance or VA Guaranty being voided, reduced,
released or adversely affected by reason of the negligence or willful
misconduct of the Servicer. The Servicer will service and administer the
Mortgage Loans in accordance with the obligations of mortgagees under the Act
and the applicable regulations thereunder and under the Servicemen's
Readjustment Act and VA Regulations and will discharge all obligations of the
mortgagee under each Mortgage Loan including, with respect to FHA Loans and VA
Loans, paying all FHA and VA insurance premiums, fees or charges, as required,
and, subject to the right to assign the Mortgage Loan to the FHA or VA, as the
case may be, will take all action reasonably necessary to preserve the lien of
such Mortgage, including the defense of actions to challenge or foreclose such
lien.
Section 3.08 Fidelity Bond and Errors and Omissions Insurance.
The Servicer shall keep in force during the term of this Agreement a
Fidelity Bond and Errors and Omissions Insurance. Such Fidelity Bond and
Errors and Omissions Insurance shall be maintained with recognized insurers
and shall be in such form and amount as would permit the Servicer to be
qualified as a FNMA or FHLMC seller-servicer. The Servicer shall be deemed to
have complied with this provision if an affiliate of the Servicer has such
errors and omissions and fidelity bond coverage and, by the terms of such
insurance policy or fidelity bond, the coverage afforded thereunder extends to
the Servicer. The Servicer shall furnish to the Master Servicer a copy of each
such bond and insurance policy if (i) the Master Servicer so requests and (ii)
the Servicer is not an affiliate of ▇▇▇▇▇▇ Brothers Inc. at the time of such
request.
Section 3.09 Notification of Adjustments.
With respect to each Adjustable Rate Mortgage Loan, the Servicer
shall adjust the Mortgage Interest Rate on the related interest rate
adjustment date and shall adjust the Monthly Payment on the related mortgage
payment adjustment date, if applicable, in compliance with the requirements of
applicable law and the related Mortgage and Mortgage Note. The Servicer shall
execute and deliver any and all necessary notices required under applicable
law and the terms of the related Mortgage Note and Mortgage regarding the
Mortgage Interest Rate and Monthly Payment adjustments. The Servicer shall
promptly, upon written request therefor, deliver to the Master Servicer such
notifications and any additional applicable data regarding such adjustments
and the methods used to calculate and implement such adjustments. Upon the
discovery by the Servicer or the receipt of notice from the Master Servicer
that the Servicer has failed to adjust a Mortgage Interest Rate or Monthly
Payment in accordance with the terms of the related Mortgage Note, the
Servicer shall immediately deposit in the Custodial Account from its own funds
the amount of any interest loss or deferral caused thereby.
Section 3.10 Completion and Recordation of Assignments of Mortgage
and FHA and VA Change Notices.
As soon as practicable after the Closing Date or the date on which a
Qualifying Substitute Mortgage Loan is delivered pursuant to Section 2.05 of
the Trust Agreement, as applicable (but in no event more than 90 days
thereafter except to the extent delays are caused by the applicable government
agency), the Servicer shall cause the endorsements on the Mortgage Note (if
applicable), the Assignments of Mortgage (subject to Section 3.01(a)), the
assignment of security agreement and the HUD form 92080 Mortgage Record Change
with respect to all FHA Loans to be completed in the name of the Trustee (or
MERS, as applicable), and shall give notice to the VA of a transfer of
insurance credits, if applicable, with respect to VA Loans on the form
prescribed by the VA.
Section 3.11 Protection of Accounts.
The Servicer may transfer the Custodial Account or the Escrow Account
to a different Qualified Depository from time to time. Such transfer shall be
made only upon obtaining the consent of the Master Servicer, which consent
shall not be withheld unreasonably.
The Servicer shall bear any expenses, losses or damages sustained by
the Master Servicer or the Trustee if the Custodial Account and/or the Escrow
Account are not demand deposit accounts.
Amounts on deposit in the Custodial Account and the Escrow Account
may at the option of the Servicer be invested in Eligible Investments;
provided that in the event that amounts on deposit in the Custodial Account or
the Escrow Account exceed the amount fully insured by the FDIC (the "Insured
Amount") the Servicer shall be obligated to invest the excess amount over the
Insured Amount in Eligible Investments on the same Business Day as such excess
amount becomes present in the Custodial Account or the Escrow Account. Any
such Eligible Investment shall mature no later than the Business Day
immediately preceding the related Remittance Date, provided, however, that if
such Eligible Investment is an obligation of a Qualified Depository (other
than the Servicer) that maintains the Custodial Account or the Escrow Account,
then such Eligible Investment may mature on the related Remittance Date. Any
such Eligible Investment shall be made in the name of the Servicer in trust
for the benefit of the Trustee. All income on or gain realized from any such
Eligible Investment shall be for the benefit of the Servicer and may be
withdrawn at any time by the Servicer. Any losses incurred in respect of any
such investment shall be deposited in the Custodial Account or the Escrow
Account, by the Servicer out of its own funds immediately as realized.
Section 3.12 Title, Management and Disposition of REO Property.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Trustee (or MERS, as applicable), or in the
event the Trustee is not authorized or permitted to hold title to real
property in the state where the REO Property is located, or would be adversely
affected under the "doing business" or tax laws of such state by so holding
title, the deed or certificate of sale shall be taken in the name of such
Person or Persons as shall be consistent with an Opinion of Counsel obtained
by the Servicer from any attorney duly licensed to practice law in the state
where the REO Property is located. The Person or Persons holding such title
other than the Trustee shall acknowledge in writing that such title is being
held as nominee for the Trustee.
The Servicer shall manage, conserve, protect and operate each REO
Property for the Trustee solely for the purpose of its prompt disposition and
sale. The Servicer, either itself or through an agent selected by the
Servicer, shall manage, conserve, protect and operate the REO Property in the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property in
the same locality as the REO Property is managed. The Servicer shall attempt
to sell the same (and may temporarily rent the same for a period not greater
than one year, except as otherwise provided below) on such terms and
conditions as the Servicer deems to be in the best interest of the Trustee.
Notwithstanding anything to the contrary contained in this Section
3.12, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the Servicer has reasonable cause to believe that a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
or if the Trustee or the Master Servicer otherwise requests, an environmental
inspection or review of such Mortgaged Property to be conducted by a qualified
inspector shall be arranged by the Servicer. Upon completion of the
inspection, the Servicer shall provide the Trustee and the Master Servicer
with a written report of such environmental inspection. In the event that the
environmental inspection report indicates that the Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, the Servicer shall
not proceed with foreclosure or acceptance of a deed in lieu of foreclosure.
In the event that the environmental inspection report is inconclusive as to
the whether or not the Mortgaged Property is contaminated by hazardous or
toxic substances or wastes, the Servicer shall not, without the prior approval
of the Trustee, proceed with foreclosure or acceptance of a deed in lieu of
foreclosure. In such instance, the Trustee shall be deemed to have approved
such foreclosure or acceptance of a deed in lieu of foreclosure unless the
Trustee notifies the Servicer in writing, within two (2) Business Days after
its receipt of written notice of the proposed foreclosure or deed in lieu of
foreclosure from the Servicer, that it disapproves of the related foreclosure
or acceptance of a deed in lieu of foreclosure. The Servicer shall be
reimbursed for all Servicing Advances made pursuant to this paragraph with
respect to the related Mortgaged Property from the Custodial Account.
The Servicer shall use its Best Efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within three years after title has been taken to such REO Property, unless (a)
a REMIC election has not been made with respect to the arrangement under which
the Mortgage Loans and the REO Property are held, and (b) the Servicer
determines, and gives an appropriate notice to the Master Servicer to such
effect, that a longer period is necessary for the orderly liquidation of such
REO Property. If a period longer than three years is permitted under the
foregoing sentence and is necessary to sell any REO Property, (i) the Servicer
shall report monthly to the Master Servicer as to the progress being made in
selling such REO Property and (ii) if, with the written consent of the
Trustee, a purchase money mortgage is taken in connection with such sale, such
purchase money mortgage shall name the Servicer as mortgagee, and such
purchase money mortgage shall not be held pursuant to this Agreement, but
instead a separate participation agreement among the Servicer and Trustee
shall be entered into with respect to such purchase money mortgage.
Notwithstanding anything herein to the contrary, the Servicer shall not be
required to provide financing for the sale of any REO Property.
The Servicer shall also maintain on each REO Property fire and hazard
insurance with extended coverage in amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
Subject to the approval of the Master Servicer as described in this
paragraph, the disposition of REO Property shall be carried out by the
Servicer at such price, and upon such terms and conditions, as the Servicer
deems to be in the best interests of the Trust Fund. Prior to acceptance by
the Servicer of an offer to sell any REO Property, the Servicer shall notify
the Master Servicer and the Trustee 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 2 Business Days after its receipt of the related Notice of Sale, that
it disapproves of the related sale. With respect to any REO Property, upon a
REO Disposition, the Servicer shall be entitled to retain from REO Disposition
Proceeds a disposition fee equal to the lesser of (A) 1.5% of the Net Sale
Proceeds or (B) $1,250; provided, however, that (1) in the event that the REO
Disposition Proceeds exceed $25,000, such disposition fee shall not be less
than $500 and (2) in the event that the REO Disposition Proceeds are $25,000
or less, such disposition fee shall be equal to $250. The proceeds of sale of
the REO Property shall be promptly deposited in the Custodial Account. After
the expenses of such disposition shall have been paid, the Servicer shall
reimburse itself pursuant to Section 3.04 hereof for any Servicing Advances it
incurred with respect to such REO Property.
The Servicer shall withdraw from the Custodial Account funds
necessary for the proper operation, management and maintenance of the REO
Property, including the cost of maintaining any hazard insurance pursuant to
the FNMA Guides. The Servicer shall make monthly distributions on each
Remittance Date to the Master Servicer of the net cash flow from the REO
Property (which shall equal the revenues from such REO Property net of the
expenses described in this Section 3.12 and of any reserves reasonably
required from time to time to be maintained to satisfy anticipated liabilities
for such expenses).
Section 3.13 Real Estate Owned Reports.
Together with the statement furnished pursuant to Section 4.02, the
Servicer shall furnish to the Master Servicer on or before the Remittance Date
each month a statement with respect to any REO Property covering the operation
of such REO Property for the previous month and the Servicer's efforts in
connection with the sale of such REO Property and any rental of such REO
Property incidental to the sale thereof for the previous month. That statement
shall be accompanied by such other information as the Master Servicer shall
reasonably request.
Section 3.14 MERS.
(a) The Servicer shall take such actions as are necessary to cause
the Trustee to be clearly identified as the owner of each MERS Mortgage Loan
on the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS.
(b) The Servicer shall maintain in good standing its membership in
MERS. In addition, the Servicer shall comply with all rules, policies and
procedures of MERS, including the Rules of Membership, as amended, and the
MERS Procedures Manual, as amended.
(c) With respect to all MERS Mortgage Loans serviced hereunder, the
Servicer shall promptly notify MERS as to any transfer of beneficial ownership
or release of any security interest in such Mortgage Loans.
(d) With respect to all MERS Mortgage Loans serviced hereunder, the
Servicer shall notify MERS as to any transfer of servicing pursuant to Section
3.15 or Section 9.01 within 10 Business Days of such transfer of servicing.
The Servicer shall cooperate with the Trustee, the Master Servicer and any
successor Servicer to the extent necessary to ensure that such transfer of
servicing is appropriately reflected on the MERS system.
Section 3.15 [[Reserved.]]
ARTICLE IV.
PAYMENTS TO MASTER SERVICER
Section 4.01 Remittances.
On each Remittance Date the Servicer shall remit by wire transfer of
immediately available funds to the Master Servicer (a) all amounts deposited
in the Custodial Account as of the close of business on the last day of the
related Due Period (net of charges against or withdrawals from the Custodial
Account pursuant to Section 3.04), plus (b) all Monthly Advances, if any,
which the Servicer is obligated to make pursuant to Section 4.03, minus (c)
any amounts attributable to Principal Prepayments, Liquidation Proceeds,
Insurance Proceeds, Condemnation Proceeds or REO Disposition Proceeds received
after the applicable Prepayment Period, which amounts shall be remitted on the
following Remittance Date, together with any additional interest required to
be deposited in the Custodial Account in connection with such Principal
Prepayment in accordance with Section 3.03(vi), and minus (d) any amounts
attributable to Monthly Payments collected but due on a Due Date or Due Dates
subsequent to the first day of the month in which such Remittance Date occurs,
which amounts shall be remitted on the Remittance Date next succeeding the Due
Date related to such Monthly Payment.
With respect to any remittance received by the Master Servicer after
the Business Day on which such payment was due, the Servicer shall pay to the
Master Servicer interest on any such late payment at an annual rate equal to
the Prime Rate, adjusted as of the date of each change, plus two (2)
percentage points, but in no event greater than the maximum amount permitted
by applicable law. Such interest shall be deposited in the Custodial Account
by the Servicer on the date such late payment is made and shall cover the
period commencing with the day following such Business Day and ending with the
Business Day on which such payment is made, both inclusive. Such interest
shall be remitted along with the distribution payable on the next succeeding
Remittance Date. The payment by the Servicer of any such interest shall not be
deemed an extension of time for payment or a waiver of any Event of Default by
the Servicer.
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:
The Chase Manhattan Bank
New York, New York
ABA#: ▇▇▇-▇▇▇-▇▇▇
Account Name: Aurora Loan Services Inc.
Master Servicing Payment Clearing Account
Account Number: 666-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO/ALS 2000-3
Section 4.02 Statements to Master Servicer.
Not later than the fifth Business Day of each month, the Servicer
shall furnish to the Master Servicer (a) a monthly remittance advice
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 period ending on the last day of the preceding
Determination Date and (b) all such information required pursuant to clause
(a) above on a magnetic tape or other similar media reasonably acceptable to
the Master Servicer.
Not later than the seventeenth day of each month, the Servicer shall
furnish to the Master Servicer (a) a monthly payoff remittance advice
regarding any Principal Prepayment in full received on or after the
seventeenth day of the month preceding the month of such reporting date, but
on or before the sixteenth day of the month of such reporting date, containing
such information and in such format as is mutually acceptable to the Master
Servicer and the Servicer, and in any event containing sufficient information
to permit the Master Servicer to properly report Principal Prepayment in full
information to the Trustee under the Trust Agreement and (b) all such
information required pursuant to clause (a) above on a magnetic tape or other
similar media reasonably acceptable to the Master Servicer.
In addition, not more than 60 days after the end of each calendar
year, commencing December 31, 2000, the Servicer shall furnish to each Person
who was an owner of the Mortgage Loans at any time during such calendar year
as required by applicable law or if not required by applicable law, at the
request of such owner as to the aggregate of remittances for the applicable
portion of such year.
Such obligation of the Servicer shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Servicer pursuant to any requirements of the Internal Revenue
Code as from time to time are in force.
Beginning with calendar year 2001, the Servicer shall prepare and
file any and all tax returns, information statements or other filings for the
portion of the tax year 2000 and the portion of subsequent tax years for which
the Servicer has serviced some or all of the Mortgage Loans hereunder as such
returns, information statements or other filings are required to be delivered
to any governmental taxing authority or to the Master Servicer pursuant to any
applicable law with respect to the Mortgage Loans and the transactions
contemplated hereby. In addition, the Servicer shall provide the Master
Servicer with such information concerning the Mortgage Loans as is necessary
for the Master Servicer to prepare the Trust Fund's federal income tax return
as the Master Servicer may reasonably request from time to time.
Section 4.03 Monthly Advances by Servicer.
The Servicer shall make Monthly Advances through the Remittance Date
immediately preceding the distribution of all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation
Proceeds) with respect to the related Mortgage Loans.
ARTICLE V.
GENERAL SERVICING PROCEDURES
Section 5.01 Servicing Compensation.
As consideration for servicing the Mortgage Loans subject to this
Agreement, the Servicer shall retain (a) the relevant Servicing Fee for each
Mortgage Loan remaining subject to this Agreement during any month and (b)
Ancillary Income. In addition, if at any time the Servicer is the Retained
Interest Holder with respect to any Mortgage Loans, then the Servicer, as the
Retained Interest Holder, shall retain an amount equal to the Retained
Interest relating to such Mortgage Loans; provided, that (i) the Trustee shall
have no obligation to make payment of the Retained Interest to the Servicer
and (ii) the Servicer's right to retain the Retained Interest is limited to
(and the Retained Interest may only be retained from) the interest portion
(including recoveries with respect to interest from Liquidation Proceeds to
the extent permitted by Section 3.02 of this Agreement) of the Monthly
Payments collected by the Servicer with respect to those Mortgage Loans for
which payment is in fact made of the entire amount of the Monthly Payment. The
Servicing Fee shall be payable monthly. The Servicing Fees shall be payable
only at the time of and with respect to those Mortgage Loans for which payment
is in fact made of the entire amount of the Monthly Payment or as otherwise
provided in Section 3.04. The obligation of the Trustee to pay the Servicing
Fees is limited as provided in Section 3.04. The aggregate of the Servicing
Fees payable to the Servicer for any month with respect to the Mortgage Loans
shall be reduced by any Prepayment Interest Shortfall Amount with respect to
such month.
The Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled
to reimbursement thereof except as specifically provided for herein.
Section 5.02 Annual Audit Report.
On or before April 30 of each year, beginning with April 30, 2001,
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.
Section 5.03 Annual Officer's Certificate.
On or before April 30 of each year, beginning with April 30, 2001,
the Servicer, at its own expense, will deliver to the Seller and 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 officers and
the nature and status thereof including the steps being taken by the Servicer
to remedy such default.
ARTICLE VI.
REPRESENTATIONS, WARRANTIES
AND AGREEMENTS
Section 6.01 Representations, Warranties and Agreements of the
Servicer.
The Servicer, as a condition to the consummation of the transactions
contemplated hereby, hereby makes the following representations and warranties
to the Seller as of the Closing Date:
(a) Due Organization and Authority. Due Organization and Authority.
The Servicer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all licenses
necessary to carry on its business as now being conducted and is licensed,
qualified and in good standing in each state where a Mortgaged Property is
located if the laws of such state require licensing or qualification in order
to conduct business of the type conducted by the Servicer, and in any event
the Servicer is in compliance with the laws of any such state to the extent
necessary to ensure the enforceability of the terms of this Agreement; the
Servicer has the full power and authority to execute and deliver this
Agreement and to perform in accordance herewith; the execution, delivery and
performance of this Agreement (including all instruments of transfer to be
delivered pursuant to this Agreement) by the Servicer and the consummation of
the transactions contemplated hereby have been duly and validly authorized;
this Agreement evidences the valid, binding and enforceable obligation of the
Servicer and all requisite action has been taken by the Servicer to make this
Agreement valid and binding upon the Servicer in accordance with its terms;
(b) Ordinary Course of Business. The consummation of the transactions
contemplated by this Agreement are in the ordinary course of business of the
Servicer;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition of the servicing responsibilities by the Servicer
or the transactions contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Agreement, will conflict with or result
in a breach of any of the terms, conditions or provisions of the Servicer's
organizational documents or any legal restriction or any agreement or
instrument to which the Servicer is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing,
or result in the violation of any law, rule, regulation, order, judgment or
decree to which the Servicer or its property is subject, or impair the ability
of the Servicer to service the Mortgage Loans, or impair the value of the
Mortgage Loans;
(d) Ability to Perform. The Servicer does not believe, nor does it
have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Servicer which, either in any
one instance or in the aggregate, may result in any material adverse change in
the business, operations, financial condition, properties or assets of the
Servicer, or in any material impairment of the right or ability of the
Servicer to carry on its business substantially as now conducted, or in any
material liability on the part of the Servicer, or which would draw into
question the validity of this Agreement or of any action taken or to be taken
in connection with the obligations of the Servicer contemplated herein, or
which would be likely to impair materially the ability of the Servicer to
perform under the terms of this Agreement;
(f) No Consent Required. No consent, approval, authorization or order
of any court or governmental agency or body is required for the execution,
delivery and performance by the Servicer of or compliance by the Servicer with
this Agreement;
(g) Ability to Service. The Servicer is an FHA Approved Mortgagee, a
VA Approved Lender and an approved seller/servicer of conventional residential
mortgage loans for FNMA, FHLMC or GNMA, with the facilities, procedures, and
experienced personnel necessary for the sound servicing of mortgage loans of
the same type as the Mortgage Loans. The Servicer is in good standing to
service mortgage loans for the FHA and the VA and either FNMA, FHLMC or GNMA.
The Servicer is a member in good standing of the MERS system;
(h) No Untrue Information. Neither this Agreement nor any statement,
report or other document furnished or to be furnished pursuant to this
Agreement or in connection with the transactions contemplated hereby contains
any untrue statement of fact or omits to state a fact necessary to make the
statements contained therein not misleading; and
(i) No Commissions to Third Parties. The Servicer has not dealt with
any broker or agent or anyone else who might be entitled to a fee or
commission in connection with this transaction other than the Seller.
Section 6.02 Remedies for Breach of Representations and Warranties of
the Servicer.
It is understood and agreed that the representations and warranties
set forth in Section 6.01 shall survive the engagement of the Servicer to
perform the servicing responsibilities as of the Closing Date hereunder and
the delivery of the Servicing Files to the Servicer and shall inure to the
benefit of the Seller and the Trustee. Upon discovery by either the Servicer,
the Master Servicer or the Seller 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 Seller or the
Trustee, the party discovering such breach shall give prompt written notice to
the other.
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
6.01 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 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 or the Master Servicer's option, assign the Servicer's
rights and obligations under this Agreement (or respecting the affected
Mortgage Loans) to a successor Servicer. Such assignment shall be made in
accordance with Sections 9.01 and 9.02.
In addition, the Servicer shall indemnify the Seller 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 representations and warranties contained in
this Agreement. It is understood and agreed that the remedies set forth in
this Section 6.02 constitute the sole remedies of the Master Servicer 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 6.01 shall
accrue upon (i) discovery of such breach by the Servicer or notice thereof by
the Seller 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 Seller or the Master Servicer for compliance with this
Agreement.
Section 6.03 Additional Indemnification by the Servicer; Third Party
Claims.
The Servicer shall indemnify the Seller, the Master Servicer and the
Trust Fund and hold them harmless against any and all Costs that the
indemnified party may sustain in any way related to (i) the failure of the
Servicer to perform its duties and service the Mortgage Loans in material
compliance with the terms of this Agreement or (ii) the failure of the
Servicer to cause any event to occur which requires its "Best Efforts" under
this Agreement. The Servicer shall immediately notify the Seller, the Master
Servicer, the Trustee, or any other relevant party if a claim is made by a
third party with respect to this Agreement or the Mortgage Loans, assume (with
the prior written consent of the indemnified party) the defense of any such
claim and pay all expenses in connection therewith, including counsel fees,
promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or any indemnified party in respect of such claim and
follow any written instructions received from such indemnified party in
connection with such claim. Each indemnified party, as applicable, promptly
shall reimburse the Servicer for all amounts advanced by it pursuant to the
preceding sentence except when the claim is in any way related to the
Servicer's indemnification pursuant to Section 6.02, or the failure of the
Servicer to service and administer the Mortgage Loans in material compliance
with the terms of this Agreement. In the event a dispute arises between an
indemnified party and the Servicer with respect to any of the rights and
obligations of the parties pursuant to this Agreement, and such dispute is
adjudicated in a court of law, by an arbitration panel or any other judicial
process, then the losing party shall indemnify and reimburse the winning party
for all attorney's fees and other costs and expenses related to the
adjudication of said dispute.
ARTICLE VII.
THE SERVICER
Section 7.01 Merger or Consolidation of the Servicer.
The Servicer shall keep in full effect its existence, rights and
franchises as a corporation, and shall obtain and preserve its qualification
to do business as a foreign entity in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which the Servicer may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to
which the Servicer shall be a party, or any Person succeeding to the business
of the Servicer, shall be the successor of the Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, provided,
however, that the successor or surviving Person shall be an institution (i)
having a net worth of not less than $25,000,000, and (ii) which is a FNMA-,
FHLMC-, and GNMA-approved servicer in good standing and an FHA approved
Mortgagee and a VA Approved Lender.
Section 7.02 Limitation on Liability of the Servicer and Others.
Neither the Servicer nor any of the directors, officers, employees or
agents of the Servicer shall be under any liability to the Seller, the Master
Servicer or the Trustee for any action taken or for refraining from the taking
of any action in good faith pursuant to this Agreement, or for errors in
judgment, provided, however, that this provision shall not protect the
Servicer or any such person against any breach of warranties or
representations made herein, or failure to perform its obligations in strict
compliance with any standard of care set forth in this Agreement, or any
liability which would otherwise be imposed by reason of any breach of the
terms and conditions of this Agreement. The Servicer and any director,
officer, employee or agent of the Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement and which in its opinion may involve it in any expense or liability,
provided, however, that the Servicer may, with the consent of the Master
Servicer, undertake any such action which it may deem necessary or desirable
in respect of this Agreement and the rights and duties of the parties hereto.
In such event, the Servicer shall be entitled to reimbursement from the Trust
Fund for the reasonable legal expenses and costs of such action.
Section 7.03 Limitation on Resignation and Assignment by the
Servicer.
The Seller has entered into this Agreement with the Servicer in
reliance upon the independent status of the Servicer, and the representations
as to the adequacy of its servicing facilities, plant, personnel, records and
procedures, its integrity, reputation and financial standing, and the
continuance thereof. Therefore, the Servicer shall neither assign its rights
under this Agreement or the servicing hereunder nor delegate its duties
hereunder or any portion thereof, or sell or otherwise dispose of all or
substantially all of its property or assets without, in each case, the prior
written consent of the Seller and the Master Servicer, which consent, in the
case of an assignment of rights or delegation of duties, shall be granted or
withheld in the discretion of the Seller and the Master Servicer, and which
consent, in the case of a sale or disposition of all or substantially all of
the property or assets of the Servicer, shall not be unreasonably withheld;
provided, that in each case, there must be delivered to the Master Servicer
and the Trustee a letter from each Rating Agency to the effect that such
transfer of servicing or sale or disposition of assets will not result in a
qualification, withdrawal or downgrade of the then-current rating of any of
the Certificates. Notwithstanding the foregoing, the Servicer, without the
consent of the Seller, the Master Servicer or the Trustee, may retain third
party contractors to perform certain servicing and loan administration
functions, including without limitation, hazard insurance administration, tax
payment and administration, flood certification and administration, collection
services and similar functions; provided, that the retention of such
contractors by Servicer shall not limit the obligation of the Servicer to
service the Mortgage Loans pursuant to the terms and conditions of this
Agreement.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Servicer and the Master Servicer
or upon the determination that its duties hereunder are no longer permissible
under applicable law and such incapacity cannot be cured by the Servicer. Any
such determination permitting the resignation of the Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Master
Servicer and the Trustee which Opinion of Counsel shall be in form and
substance acceptable to the Master Servicer and the Trustee. No such
resignation shall become effective until a successor shall have assumed the
Servicer's responsibilities and obligations hereunder in the manner provided
in Section 9.01.
Without in any way limiting the generality of this Section 7.03, in
the event that the Servicer either shall assign this Agreement or the
servicing responsibilities hereunder or delegate its duties hereunder or any
portion thereof or sell or otherwise dispose of all or substantially all of
its property or assets, without the prior written consent of the Seller and
the Master Servicer, then the Seller or the Master Servicer shall have the
right to terminate this Agreement upon notice given as set forth in Section
8.01, without any payment of any penalty or damages and without any liability
whatsoever to the Servicer or any third party.
ARTICLE VIII.
TERMINATION
Section 8.01 Termination for Cause.
This Agreement shall be terminable at the option of the Seller or the
Master Servicer if any of the following events of default exist on the part of
the Servicer:
(i) any failure by the Servicer to remit to the Master Servicer
any payment required to be made under the terms of this Agreement which
continues unremedied for a period of two Business Days after the date upon
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Servicer by the Master Servicer; or
(ii) failure by the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Servicer set forth in this Agreement which continues unremedied for a period
of 30 days; or
(iii) failure by the Servicer to maintain its license to do
business or service residential mortgage loans in any jurisdiction, if
required by such jurisdiction, where the Mortgaged Properties are located; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, including bankruptcy,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 days; or
(v) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or of or relating to all or substantially all of its property; or
(vi) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable insolvency, bankruptcy or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of
its obligations or cease its normal business operations for three Business
Days; or
(vii) the Servicer ceases to meet the qualifications of a FNMA,
FHLMC or GNMA lender/servicer or ceases to be an FHA Approved Mortgagee or
ceases to be a VA Approved Lender; or
(viii) the Servicer attempts to assign the servicing of the
Mortgage Loans or its right to servicing compensation hereunder or the
Servicer attempts to sell or otherwise dispose of all or substantially all of
its property or assets or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any portion
thereof, in each case without complying fully with the provisions of Section
7.03.
In each and every such case, so long as an event of default shall not
have been remedied, in addition to whatever rights the Seller or the Master
Servicer may have at law or equity to damages, including injunctive relief and
specific performance, the Seller or the Master Servicer, by notice in writing
to the Servicer, may terminate all the rights and obligations of the Servicer
under this Agreement and in and to the servicing contract established hereby
and the proceeds thereof.
Upon receipt by the Servicer of such written notice, all authority
and power of the Servicer under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in a successor
Servicer appointed by the Seller and the Master Servicer. Upon written request
from the Seller, the Servicer shall prepare, execute and deliver to the
successor entity designated by the Seller any and all documents and other
instruments, place in such successor's possession all Servicing Files, and do
or cause to be done all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, including but not limited
to the transfer and endorsement or assignment of the Mortgage Loans and
related documents, at the Servicer's sole expense. The Servicer shall
cooperate with the Seller and the Master Servicer and such successor in
effecting the termination of the Servicer's responsibilities and rights
hereunder, including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited
by the Servicer to the Custodial Account or Escrow Account or thereafter
received with respect to the Mortgage Loans.
By a written notice, the Seller and the Master Servicer may waive any
default by the Servicer in the performance of its obligations hereunder and
its consequences. Upon any waiver of a past default, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon
except to the extent expressly so waived.
Section 8.02 Termination Without Cause.
This Agreement shall terminate upon: (i) the later of (a) the
distribution of the final payment or liquidation proceeds on the last Mortgage
Loan to the Master Servicer (or advances by the Servicer for the same), and
(b) the disposition of all REO Property acquired upon foreclosure of the last
Mortgage Loan and the remittance of all funds due hereunder, (ii) mutual
consent of the Servicer, Seller and the Master Servicer in writing or (iii) at
the sole discretion of the Seller (acting in its capacity as owner of the
servicing rights relating to the Mortgage Loans). Any such termination
pursuant to clause (iii) above shall be with 30 days' prior notice, in writing
and delivered to the Trustee, the Master Servicer and the Servicer by
registered mail to the addresses set forth in Section 9.03 of this Agreement
(in the case of the Servicer) or in the Trust Agreement (in the case of the
Trustee or the Master Servicer). The Servicer shall comply with the
termination procedures set forth in Sections 7.03, 8.01 and 9.01 hereof. The
Master Servicer or the Trustee shall have no right to terminate the Servicer
pursuant to this Section 8.02.
ARTICLE IX.
MISCELLANEOUS PROVISIONS
Section 9.01 Successor to the Servicer.
Simultaneously with the termination of the Servicer's
responsibilities and duties under this Agreement (a) pursuant to Sections
6.02, 7.03, 8.01 or 8.02(ii), the Master Servicer shall (i) succeed to and
assume all of the Servicer's responsibilities, rights, duties and obligations
under this Agreement, or (ii) appoint a successor having the characteristics
set forth in clauses (i) and (ii) of Section 7.01 and which shall succeed to
all rights and assume all of the responsibilities, duties and liabilities of
the Servicer under this Agreement simultaneously with the termination of the
Servicer's responsibilities, duties and liabilities under this Agreement; or
(b) pursuant to Section 8.02(iii), the Seller shall appoint a successor having
the characteristics set forth in clauses (i) and (ii) of Section 7.01 and
which shall succeed to all rights and assume all of the responsibilities,
duties and liabilities of the Servicer under this Agreement simultaneously
with the termination of the Servicer's responsibilities, duties and
liabilities under this Agreement. Any successor to the Servicer shall be
subject to the approval of the Master Servicer and, to the extent required by
the Trust Agreement, the Trustee, shall be a member in good standing of the
MERS system (if any of the Mortgage Loans are MERS Eligible Mortgage Loans,
unless such Mortgage Loans are withdrawn from MERS and Assignments of Mortgage
are recorded in favor of the Trustee at the expense of the successor Servicer)
and shall be an FHA Approved Mortgagee and a VA Approved Lender. Any approval
of a successor servicer by the Master Servicer and, to the extent required by
the Trust Agreement, the Trustee, shall be conditioned upon the receipt by the
Master Servicer and the Trustee of a letter from each Rating Agency 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 addition, with respect to any FHA Loans serviced hereunder, the Servicer
shall provide notice of such change in servicers to HUD on HUD form 92080 or
such other form as prescribed by HUD, within 10 days after such transfer of
servicing. 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 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 9.01 and shall in no event relieve the
Servicer of the representations and warranties made pursuant to Sections 6.01
and the remedies available to the Master Servicer and the Seller under Section
6.02 and 6.03, it being understood and agreed that the provisions of such
Sections 6.01, 6.02 and 6.03 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, including but not limited
to the transfer and endorsement of the Mortgage Notes and related documents,
and the preparation and recordation of Assignments of Mortgage. The Servicer
shall cooperate with the Trustee, the Master Servicer or the Seller, 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
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, the Master Servicer and the Seller
an instrument (i) accepting such appointment, wherein the successor shall make
the representations and warranties set forth in Section 6.01 (including a
representation that the successor Servicer is a member of MERS, unless none of
the Mortgage Loans are MERS Mortgage Loans or MERS Eligible Mortgage Loans or
any such Mortgage Loans have been withdrawn from MERS and Assignments of
Mortgage are recorded in favor of the Trustee) 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
Sections 6.02, 7.03, 8.01 or 8.02 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. In addition, in the event any successor Servicer is appointed
pursuant to Section 8.02(iii) of this Agreement, such successor Servicer must
satisfy the conditions relating to the transfer of servicing set forth in the
Trust Agreement.
The Servicer shall deliver promptly 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, the Seller and Master Servicer of such appointment
in accordance with the procedures set forth in Section 9.03.
Section 9.02 Costs.
The Seller shall pay any legal fees and expenses of its attorneys.
Costs and expenses incurred in connection with the transfer of the servicing
responsibilities, including fees for delivering Servicing Files, shall be paid
by the Seller. Subject to Sections 2.02 and 3.01(a), the Depositor shall pay
the costs associated with the preparation, delivery and recording of
Assignments of Mortgages.
Section 9.03 Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if sent by facsimile or mailed by
overnight courier, addressed as follows (or such other address as may
hereafter be furnished to the other party by like notice):
(i) if to the Seller:
Lehman Capital, A Division of
▇▇▇▇▇▇ Brothers Holdings Inc.
Three World Financial Center
New York, New York 10285
Attention: Manager, Contract Finance
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Servicer:
Aurora Loan Services Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Aurora Loan Services Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Loan Administration
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to the Master Servicer:
Aurora Loan Services Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: E. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee.
Section 9.04 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable
any provision hereof. If the invalidity of any part, provision, representation
or warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to develop a structure the economic effect of which is as close as
possible to the economic effect of this Agreement without regard to such
invalidity.
Section 9.05 No Personal Solicitation.
From and after the Closing Date, the Servicer hereby agrees that it
will not take any action or permit or cause any action to be taken by any of
its agents or affiliates, or by any independent contractors on the Servicer's
behalf, to personally, by telephone or mail, solicit the borrower or obligor
under any Mortgage Loan (on a targeted basis) for any purposes of prepayment,
refinancing or modification of the related Mortgage Loan, provided, however,
that this limitation shall not prohibit Servicer from soliciting such
Mortgagor for purposes of prepayment, refinance or modification of any loan
owned or serviced by Servicer other than a Mortgage Loan. It is understood and
agreed that, among other marketing activities, promotions undertaken by
Servicer which are directed of the general public at large or which are
directed generally to a segment of the then existing customers of Servicer or
any of its direct or indirect subsidiaries (including, without limitation, the
mailing of promotional materials to Servicer's deposit customers by inserting
such materials into customer account statements, mass mailings based on
commercially acquired mailing lists and newspaper, radio and television
advertisements) shall not constitute solicitation under this section. In the
event the Servicer does refinance any Mortgage Loan as a result of a violation
of the requirements set forth in this Section 9.05, Servicer hereby agrees to
pay to the Trust Fund an amount equal to the difference, if any, between the
amount that the Trust Fund would have received if it had sold the Mortgage
Loan to a third party, and the proceeds received by the Trust Fund as result
of such refinancing.
Section 9.06 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 9.07 Place of Delivery and Governing Law.
This Agreement shall be deemed in effect when a fully executed
counterpart thereof is received by the Seller in the State of New York and
shall be deemed to have been made in the State of New York. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
NOTWITHSTANDING NEW YORK OR OTHER CHOICE OF LAW RULES TO THE CONTRARY.
Section 9.08 Further Agreements.
The Seller and the Servicer each agree to execute and deliver to the
other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of
this Agreement.
Section 9.09 Intention of the Parties.
It is the intention of the parties that the Seller is conveying, and
the Servicer is receiving only a contract for servicing the Mortgage Loans.
Accordingly, the parties hereby acknowledge that the Trust Fund remains the
sole and absolute owner of the Mortgage Loans and all rights (other than the
servicing rights) related thereto.
Section 9.10 Successors and Assigns; Assignment of Servicing
Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Servicer, the Seller, the Trustee and the Master Servicer
and their respective successors and assigns. This Agreement shall not be
assigned, pledged or hypothecated by the Servicer to a third party except in
accordance with Section 7.03.
Section 9.11 Assignment by ▇▇▇▇▇▇ Capital.
The Seller shall have the right, upon notice to but without the
consent of the Servicer, to assign, in whole or in part, its interest under
this Agreement to the Depositor, which in turn shall assign such rights to the
Trustee, and the Trustee then shall succeed to all rights of the Seller under
this Agreement. All references to the Seller in this Agreement shall be deemed
to include its assignee or designee and any subsequent assignee or designee,
specifically including the Trustee.
Section 9.12 [[Reserved.]]
Section 9.13 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party
against whom such waiver or modification is sought to be enforced.
Section 9.14 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
Section 9.15 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular, and the
use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions
of this Agreement;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean by reason of
enumeration.
Section 9.16 Reproduction of Documents.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications which may hereafter be
executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or
hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, micro-card, miniature photographic or other similar process. The
parties agree that any such reproduction shall be admissible in evidence as
the original itself in any judicial or administrative proceeding, whether or
not the original is in existence and whether or not such reproduction was made
by a party in the regular course of business, and that any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence.
IN WITNESS WHEREOF, the Servicer, the Seller and the Master Servicer
have caused their names to be signed hereto by their respective officers
thereunto duly authorized as of the date first above written.
▇▇▇▇▇▇ CAPITAL, A DIVISION OF ▇▇▇▇▇▇
BROTHERS HOLDINGS INC., as Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
AURORA LOAN SERVICES INC.,
as Servicer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
AURORA LOAN SERVICES INC.,
as Master Servicer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[[See Tab # 8]]
EXHIBIT B
CUSTODIAL ACCOUNT LETTER AGREEMENT
_______ __, 20__
To:
___________________________
___________________________
___________________________
(the "Depository")
As Servicer under the Servicing Agreement, dated as of July 1, 2000
(the "Agreement"), we hereby authorize and request you to establish an
account, as a Custodial Account pursuant to Section 3.03 of the Agreement, to
be designated as "Aurora Loan Services Inc., in trust for the Master Servicer
for Aurora Loan Services 2000-3." All deposits in the account shall be subject
to withdrawal therefrom by order signed by the Servicer. This letter is
submitted to you in duplicate. Please execute and return one original to us.
AURORA LOAN SERVICES INC.
By:__________________________________
Name:
Title:
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number __________, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above.
__________________________
Depository
By:_______________________
Name:
Title:
Date:
EXHIBIT C
ESCROW ACCOUNT LETTER AGREEMENT
_______ __, 20__
To: ___________________________
___________________________
___________________________
(the "Depository")
As Servicer under the Servicing Agreement, dated as of July 1, 2000
(the "Agreement"), we hereby authorize and request you to establish an
account, as an Escrow Account pursuant to Section 3.05 of the Agreement, to be
designated as "Aurora Loan Services Inc., in trust for the Master Servicer for
Aurora Loan Services 2000-3." All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. This letter is submitted
to you in duplicate. Please execute and return one original to us.
AURORA LOAN SERVICES INC.
By:________________________________
Name:
Title:
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number __________, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above.
_____________________________________
Depository
By:_________________________________
Name:
Title:
Date: