EXHIBIT 99.8
EXECUTION
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered
into as of the 1st day of May 2001, by and between XXXXXX CAPITAL, A DIVISION
OF XXXXXX BROTHERS HOLDINGS INC., a Delaware corporation ("Xxxxxx Capital"),
and GMAC MORTGAGE CORPORATION (the "Servicer") having an office at 000 Xxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, recites and provides as follows:
RECITALS
WHEREAS, the Servicer is currently servicing certain first lien,
adjustable and fixed rate mortgage loans on behalf of Xxxxxx Capital pursuant
to a Sale and Servicing Agreement (the "Servicing Agreement"), dated as of
January 1, 2001 and annexed as Exhibit B hereto, by and between Xxxxxx
Capital, as initial owner, and the Servicer, as servicer.
WHEREAS, Xxxxxx Capital has conveyed certain of such mortgage loans,
as identified on Schedule I hereto (the "Serviced Mortgage Loans"), to
Structured Asset Securities Corporation, a Delaware special purpose
corporation ("SASCO"), which in turn has conveyed the Serviced Mortgage Loans
to Bank One Trust Company, N.A. (the "Trustee"), pursuant to a trust agreement
dated as of May 1, 2001 (the "Trust Agreement"), among the Trustee, Aurora
Loan Services Inc., as master servicer ("Aurora," and, together with any
successor Master Servicer appointed pursuant to the provisions of the Trust
Agreement, the "Master Servicer"), Washington Mutual Mortgage Securities
Corp., as an additional master servicer, The Chase Manhattan Bank, as
securities administrator and SASCO.
WHEREAS, Xxxxxx Capital desires that the Servicer continue to service
the Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to
the rights of Xxxxxx Capital (with the consent of the Master Servicer) to
terminate the rights and obligations of the Servicer hereunder as permitted
under Section 10.02 of the Servicing Agreement and to the other conditions set
forth herein.
WHEREAS, Xxxxxx Capital and the Servicer agree that the provisions of
the Servicing Agreement shall continue to apply to the Serviced Mortgage
Loans, but only to the extent provided herein and that this Agreement shall
constitute a Reconstitution Agreement (as such term is defined in the
Servicing Agreement) which shall govern the Serviced Mortgage Loans for so
long as such Serviced Mortgage Loans remain subject to the provisions of the
Trust Agreement.
WHEREAS, the Master Servicer and any successor master servicer shall
be obligated, among other things, to supervise the servicing of the Serviced
Mortgage Loans on behalf of the Trustee, and shall have the right under the
conditions specified herein to terminate for cause the rights and obligations
of the Servicer under this Agreement.
WHEREAS, Xxxxxx Capital and the Servicer intend that each of the
Master Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Xxxxxx Capital and the Servicer
hereby agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this
Agreement, including Exhibit A hereto and any provisions of the Servicing
Agreement incorporated by reference herein (regardless of whether such terms
are defined in the Servicing Agreement), shall have the meanings ascribed to
such terms in the Trust Agreement.
2. Servicing. The Servicer agrees, with respect to the Serviced
Mortgage Loans, to perform and observe the duties, responsibilities and
obligations that are to be performed and observed under the provisions of the
Servicing Agreement, except as otherwise provided herein and on Exhibit A
hereto, and that the provisions of the Servicing Agreement, as so modified,
are and shall be a part of this Agreement to the same extent as if set forth
herein in full.
3. Master Servicing; Termination of Servicer. The Servicer, including
any successor servicer hereunder, shall be subject to the supervision of the
Master Servicer, which Master Servicer shall be obligated to ensure that the
Servicer services the Serviced Mortgage Loans in accordance with the
provisions of this Agreement. The Master Servicer, acting on behalf of the
Trustee and the SASCO 2001-8A Trust Fund (the "Trust Fund") created pursuant
to the Trust Agreement, shall have the same rights as Xxxxxx Capital, as
owner, under the Servicing Agreement to enforce the obligations of the
Servicer under the Servicing Agreement and the term "Owner" as used in the
Servicing Agreement in connection with any rights of the Owner shall refer to
the Trust Fund or, as the context requires, the Master Servicer acting in its
capacity as agent for the Trust Fund, except as otherwise specified in Exhibit
A hereto. The Master Servicer shall be entitled to terminate the rights and
obligations of the Servicer under this Agreement upon the failure of the
Servicer to perform any of its obligations under this Agreement, which failure
results in an Event of Default as provided in Article IX of the Servicing
Agreement. Notwithstanding anything herein to the contrary, in no event shall
the Master Servicer assume any of the obligations of Xxxxxx Capital under the
Servicing Agreement; and in connection with the performance of the Master
Servicer's duties hereunder the parties and other signatories hereto agree
that the Master Servicer shall be entitled to all of the rights, protections
and limitations of liability afforded to the Master Servicer under the Trust
Agreement.
4. Accounts. Each of the Custodial Account and the Escrow Account
shall be segregated Eligible Accounts titled "GMAC Mortgage Corporation, in
trust for SASCO 2001-8A Trust Fund."
5. Notices. All notices and communications between or among the
parties hereto (including any third party beneficiary thereof) or required to
be provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
All notices required to be delivered to the Master Servicer under
this Agreement shall be delivered to the Master Servicer at the following
address:
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: E. Xxxx Xxxxxxxxxx, Master Servicing, SASCO/ALS 2001-8A
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled basis to the following wire
account:
The Chase Manhattan Bank
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc., Master Servicing Payment
Clearing Account
Account No.: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO/ALS 2001-8A
All notices required to be delivered to the Trustee hereunder shall
be delivered to the Trustee at the following address:
Bank One, National Association
0 Xxxx Xxx Xxxxx
Xxxx Xxxxx 0X0 - 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Corporate Trust Services, SASCO/ALS 2001-8A
Telephone: 000-000-0000
Telecopier: 000-000-0000
All notices required to be delivered to Xxxxxx Capital hereunder
shall be delivered to Xxxxxx Capital at the following address:
Xxxxxx Capital, a Division of Xxxxxx
Brothers Holdings Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Mortgage Backed Finance Department
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All notices required to be delivered to the Servicer hereunder shall
be delivered to the address of its office as set forth in the first paragraph
of this Agreement.
6. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING NEW
YORK OR OTHER CHOICE OF LAW RULES TO THE CONTRARY.
7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original, but all of which counterparts shall together constitute but one and
the same instrument.
8. Reconstitution. Xxxxxx Capital and the Servicer agree that this
Agreement is a "Reconstitution Agreement" and that the date hereof is the
"Reconstitution Date", each as defined in the Servicing Agreement.
Executed as of the day and year first above written.
XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.,
as Owner
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Authorized Signatory
GMAC MORTGAGE CORPORATION,
as Servicer
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
Acknowledged By:
AURORA LOAN SERVICES INC.,
as Master Servicer
By: /s/ E. Xxxx Xxxxxxxxxx
--------------------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Exec. Vice President
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to the Servicing Agreement
1. Master Servicer as Agent of the Trust Fund. The parties hereto
acknowledge that all consents, approvals, recommendations and directions
required to be obtained by the Company from the Owner pursuant to Article
IV of the Servicing Agreement shall be obtained by the Company from the
Master Servicer in its capacity as master servicer of the Trust Fund.
2. The definition of "Custodial Agreement" in Article I is hereby amended in
its entirety to read as follows:
"Custodial Agreement": The Custodial Agreement dated as of May 1,
2001 between the Trustee, the Custodian and SASCO, as Depositor of
the Trust Fund.
3. The definition of "Eligible Investments" in Article I is hereby amended
in its entirety to read as follows:
"Eligible Investments": Any one or more of the obligations and
securities listed below which investment provides for a date of
maturity not later than the Determination Date in each month:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and
credit of the United States of America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued by, any
depository institution or trust company (including U.S. subsidiaries
of foreign depositories and the Trustee or any agent of the Trustee,
acting in its respective commercial capacity) incorporated or
organized under the laws of the United States of America or any
state thereof and subject to supervision and examination by federal
or state banking authorities, so long as at the time of investment
or the contractual commitment providing for such investment the
commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company or
deposit institution, as the case may be) have been rated by each
Rating Agency in its highest short-term rating category or one of
its two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by GNMA, Xxxxxx Xxx or Xxxxxxx
Mac with any registered broker/dealer subject to Securities
Investors' Protection Corporation jurisdiction or any commercial
bank insured by the FDIC, if such broker/dealer or bank has an
uninsured, unsecured and unguaranteed obligation rated by each
Rating Agency in its highest short-term rating category;
(iv) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States
of America or any state thereof which have a credit rating from each
Rating Agency, at the time of investment or the contractual
commitment providing for such investment, at least equal to one of
the two highest long-term credit rating categories of each Rating
Agency; provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held as part of the
Trust Fund to exceed 20% of the sum of the aggregate principal
balance of the Mortgage Loans; provided, further, that such
securities will not be Eligible Investments if they are published as
being under review with negative implications from either Rating
Agency;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 180 days after the date
of issuance thereof) rated by each Rating Agency in its highest
short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of
the United States of America or its agencies or instrumentalities
(which obligations are backed by the full faith and credit of the
United States of America) held by a custodian in safekeeping on
behalf of the holders of such receipts;
(viii) any other demand, money market, common trust fund or
time deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating
Agency or (B) that would not adversely affect the then current
rating by each Rating Agency of any of the Certificates. Such
investments in this subsection (viii) may include money market
mutual funds or common trust funds, including any fund for which the
Trustee, the Master Servicer or an affiliate thereof serves as an
investment advisor, administrator, shareholder servicing agent,
and/or custodian or subcustodian, notwithstanding that (x) the
Trustee, the Master Servicer or an affiliate thereof charges and
collects fees and expenses from such funds for services rendered,
(y) the Trustee, the Master Servicer or an affiliate thereof charges
and collects fees and expenses for services rendered pursuant to
this Agreement, and (z) services performed for such funds and
pursuant to this Agreement may converge at any time, and
(ix) GMAC Variable Denomination Demand Note Program which
constitutes unsecured, senior debt obligations of General Motors
Acceptance Corporation as outlined in the Prospectus dated March 31,
1995 (the "Demand Note Program"). Investments in the demand note
Program are subject to:
(a) GMAC's short term unsecured debt must be rated (i) at
least A-1 by S&P and at least P-2 by Xxxxx'x or (ii) at
least A-2 by S&P and at least P-1 by Xxxxx'x; and
(b) GMAC's long term unsecured debt must be rated (1) not less
than A- by S&P and (ii) not less than A3 by Xxxxx'x.
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.
4. The definition of "GNMA" is hereby added to Article I to immediately
follow the definition of "Full Principal Prepayment":
"GNMA": The Government National Mortgage Association, or any
successor thereto.
5. The definition of "Opinion of Counsel" in Article I is hereby amended by
adding the following proviso at the end of such definition:
; provided, that any Opinion of Counsel relating to (a)
qualification of the Mortgage Loans in a REMIC or (b) compliance
with the REMIC Provisions, must be an opinion of counsel who (i) is
in fact independent of the Company and the Master Servicer of the
Mortgage Loans, (ii) does not have any material direct or indirect
financial interest in the Company or the Master Servicer of the
Mortgage Loans or in an affiliate of either and (iii) is not
connected with the Company or the Master Servicer of the Mortgage
Loans as an officer, employee, director or person performing similar
functions. The cost of any such Opinion of Counsel shall be an
expense of the Trust Fund unless Xxxxxx Capital decides, in its own
discretion, to bear such expense for the Trust Fund, in which case
such cost will be borne by Xxxxxx Capital.
6. The definition of "Qualified GIC" is hereby added to Article I to
immediately follow the definition of "Qualified Depository", to read as
follows:
"Qualified GIC": A guaranteed investment contract or surety bond
providing for the investment of funds in the Custodial Account and
insuring a minimum, fixed or floating rate of return on investments
of such funds, which contract or surety bond shall:
(a) be an obligation of an insurance company or other
corporation whose long-term debt is rated by each Rating Agency in
one of its two highest rating categories or, if such insurance
company has no long-term debt, whose claims paying ability is rated
by each Rating Agency in one of its two highest rating categories,
and whose short-term debt is rated by each Rating Agency in its
highest rating category;
(b) provide that the Company may exercise all of the rights
under such contract or surety bond without the necessity of taking
any action by any other Person;
(c) provide that if at any time the then current credit
standing of the obligor under such guaranteed investment contract is
such that continued investment pursuant to such contract of funds
would result in a downgrading of any rating of the Servicer, the
Servicer shall terminate such contract without penalty and be
entitled to the return of all funds previously invested thereunder,
together with accrued interest thereon at the interest rate provided
under such contract to the date of delivery of such funds to the
Trustee;
(d) provide that the Servicer's interest therein shall be
transferable to any successor Servicer or the Master Servicer
hereunder; and
(e) provide that the funds reinvested thereunder and accrued
interest thereon be returnable to the Custodial Account, as the case
may be, not later than the Business Day prior to any Determination
Date.
7. The parties hereto acknowledge that Section 2.03 (Custodial Agreement)
shall be inapplicable to this Agreement, as superseded by the provisions
of the Custodial Agreement and the Trust Agreement.
8. Section 4.01 (Company to Act as Servicer) is hereby amended by adding the
following sentence after the second sentence of the first paragraph:
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Servicer shall
forward to the Master Servicer copies of any documents evidencing
such assumption, modification, consolidation or extension.
9. Section 5.02 (Statements to the Owner) is hereby amended by deleting the
first paragraph and replacing it with the following:
Not later than the tenth calendar day of each month (or if such
tenth calendar day is not a Business Day, the next Business Day),
the Servicer will furnish to the Master Servicer a monthly statement
containing such information in the form required by the Master
Servicer or its designee, in hard copy or electronic medium mutually
acceptable to the parties as to the accompanying remittance and the
period ending on the last day of the preceding calendar month.
10. Section 5.04 (Prepayment Interest Shortfalls) is hereby amended by adding
"without reimbursement therefor" after "its own funds".
11. Section 8.01 (Indemnification; Third Party Claims) is hereby amended in
its entirety to read as follows:
The Company shall indemnify the Trust Fund, the Trustee and the
Master Servicer and hold each of them harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgements, and any
other costs, fees and expenses that any of such parties may sustain
directly resulting from the failure of the Company to perform its
duties and service the Mortgage Loans in strict compliance with the
terms of this Agreement. The Company immediately shall notify Xxxxxx
Capital, the Master Servicer and 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. The Company shall follow any
written instructions received from the Trustee in connection with
such claim.
12. Section 11.01 (Successor to the Company) is hereby amended in its
entirety to read as follows:
Simultaneously with the termination of the Company's
responsibilities and duties under this Agreement the Master Servicer
shall, in accordance with the provisions of the Trust Agreement (i)
succeed to and assume all of the Company's responsibilities, rights,
duties and obligations under this Agreement, or (ii) appoint a
successor meeting the eligibility requirements of this Agreement and
which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Company under this
Agreement with the termination of the Company's responsibilities,
duties and liabilities under this Agreement. Any successor to the
Company that is not at that time a servicer of other mortgage loans
for the Trust Fund shall be subject to the approval of the Master
Servicer, Xxxxxx Capital, the Trustee and each Rating Agency (as
such term is defined in the Trust Agreement). Unless the successor
servicer is at that time a Servicer of other mortgage loans for the
Trust Fund, each Rating Agency must deliver to the Trustee a letter
to the effect that such transfer of servicing will not result in a
qualification, withdrawal or downgrade of the then-current rating of
any of the Certificates. In connection with such appointment and
assumption, the Master Servicer or the Depositor, as applicable, may
make such arrangements for the compensation of such successor out of
payments on the Mortgage Loans as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of
that permitted the Company under this Agreement. In the event that
the Company's duties, responsibilities and liabilities under this
Agreement should be terminated pursuant to the aforementioned
sections, the Company 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 Company pursuant to
the aforementioned sections shall not become effective until a
successor shall be appointed pursuant to this Section 11.01 and
shall in no event relieve the Company of the representations and
warranties made pursuant to the Agreement and the remedies available
to the Trustee under the Agreement, including Section 8.01, it being
understood and agreed that such provisions shall be applicable to
the Company notwithstanding any such resignation or termination of
the Company, 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 Company shall
prepare, execute and deliver to the successor entity any and all
documents and other instruments, place in such successor's
possession all Servicing Files, and do or cause to be done all other
acts or things necessary or appropriate to effect the purposes of
such notice of termination. The Company shall cooperate with the
Trustee and the Master Servicer, as applicable, and such successor
in effecting the termination of the Company'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 Company to the Custodial
Account or any Escrow Account or thereafter received with respect to
the Mortgage Loans.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Trustee, the Servicer and the Master
Servicer an instrument (i) accepting such appointment 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 Company, with like effect as if
originally named as a party to this Agreement. Any termination or
resignation of the Company or termination of this Agreement pursuant
to Section 11.01 shall not affect any claims that the Master
Servicer or the Trustee may have against the Company arising out of
the Company's actions or failure to act prior to any such
termination or resignation.
The Company shall deliver within five (5) Business Days of a
servicing transfer 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
Company 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 Company.
Upon a successor's acceptance of appointment as such, the
Company shall notify the Trustee and Master Servicer of such
appointment in accordance with the notice procedures set forth
herein.
Except as otherwise provided in this Agreement, all reasonable
costs and expenses incurred in connection with any transfer of
servicing hereunder, solely as a result of a termination for cause
of the Servicer pursuant to Section 10.01 of the Master Servicing
Agreement, including, without limitation, the costs and expenses of
the Master Servicer or any other Person in appointing a successor
servicer, or of the Master Servicer in assuming the responsibilities
of the Company hereunder, or of transferring the Servicing Files and
the other necessary data to the successor servicer shall be paid by
the terminated, removed or resigning Servicer from its own funds
without reimbursement.
13. Intended Third Party Beneficiaries. Notwithstanding any provision herein
to the contrary, the parties to this Agreement agree that it is
appropriate, in furtherance of the intent of such parties as set forth
herein, that the Master Servicer and the Trustee receive the benefit of
the provisions of this Agreement as intended third party beneficiaries of
this Agreement to the extent of such provisions. The Servicer shall have
the same obligations to the Master Servicer and the Trustee as if they
were parties to this Agreement, and the Master Servicer and the Trustee
shall have the same rights and remedies to enforce the provisions of this
Agreement as if they were parties to this Agreement. The Servicer shall
only take direction from the Master Servicer (if direction by the Master
Servicer is required under this Agreement) unless otherwise directed by
this Agreement. Notwithstanding the foregoing, all rights and obligations
of the Master Servicer and the Trustee hereunder (other than the right to
indemnification) shall terminate upon termination of the Trust Agreement
and of the Trust Fund pursuant to the Trust Agreement.
EXHIBIT B
Servicing Agreement
SCHEDULE I
Mortgage Loan Schedule