Exhibit 99.4
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of December, 2004, by and between XXXXXX BROTHERS HOLDINGS
INC., a Delaware corporation (the "Seller" or "Xxxxxx Brothers Holdings"),
COUNTRYWIDE HOME LOANS SERVICING LP, a Texas limited partnership (the
"Servicer"), a wholly owned subsidiary of COUNTRYWIDE HOME LOANS, INC., a New
York corporation ("Countrywide"), and acknowledged by AURORA LOAN SERVICES INC.,
a Delaware corporation ("Aurora"), and JPMORGAN CHASE BANK, N.A. (the
"Trustee"), recites and provides as follows:
RECITALS
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Bank") acquired certain fixed
and adjustable rate, conventional, first lien, residential mortgage loans from
Countrywide Home Loans, Inc. pursuant to the Flow Seller's Warranties and
Servicing Agreement between the Seller and Countrywide Home Loans, Inc., dated
as of June 1, 2004 for Conventional Residential Fixed Rate Mortgage Loans (the
"SWSA") attached hereto as Exhibit B and such Mortgage Loans are being serviced
on behalf of Countrywide Home Loans, Inc. by the Servicer.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated
December 1, 2004 (the "Assignment and Assumption Agreement") annexed as Exhibit
C hereto, the Seller acquired from the Bank all of the Bank's right, title and
interest in and to the mortgage loans currently serviced under the SWSA and
assumed for the benefit of each of the Servicer and the Bank the rights and
obligations of the Bank as owner of such mortgage loans pursuant to the SWSA.
WHEREAS, the Seller has conveyed the mortgage loans identified on
Exhibit D 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 the Trustee, pursuant to a trust
agreement, dated as of December 1, 2004 (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") and SASCO.
WHEREAS, the Serviced Mortgage Loans are currently being serviced by the
Servicer pursuant to the SWSA.
WHEREAS, the Seller desires that the Servicer continue to service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
rights of the Seller and the Master Servicer to terminate the rights and
obligations of the Servicer hereunder as set forth herein and to the other
conditions set forth herein.
WHEREAS, the Seller and the Servicer agree that the provisions of the
SWSA shall apply to the Serviced Mortgage Loans, but only to the extent provided
herein and that this Agreement shall govern the Serviced Mortgage Loans for so
long as such Serviced Mortgage Loans remain subject to the provisions of the
Trust Agreement.
WHEREAS, the Master Servicer and any successor master servicer shall be
obligated, among other things, to supervise the servicing of the Serviced
Mortgage Loans on behalf of the Trustee, and shall have the right, under certain
circumstances, to terminate the rights and obligations of the Servicer under
this Agreement.
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WHEREAS, the Seller and the Servicer intend that each of the Master
Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Seller and the Servicer hereby
agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this
Agreement, including Exhibit A hereto and any provisions of the SWSA
incorporated by reference herein (regardless of whether such terms are defined
in the SWSA), shall have the meanings ascribed to such terms in the Trust
Agreement.
2. Custodianship. The parties hereto acknowledge that U.S. Bank
National Association will act as custodian of the Servicing Files for the
Trustee pursuant to a Custodial Agreement, dated December 1, 2004, between U.S.
Bank National Association and the Trustee.
3. Servicing. The Servicer agrees, with respect to the Serviced
Mortgage Loans, to perform and observe the duties, responsibilities and
obligations that are to be performed and observed under the provisions of the
SWSA, except as otherwise provided herein and on Exhibit A hereto, and that the
provisions of the SWSA, as so modified, are and shall be a part of this
Agreement to the same extent as if set forth herein in full.
4. Trust Cut-off Date. The parties hereto acknowledge that by
operation of Section 4.05 and Section 5.01 of the SWSA, the remittance on
January 18, 2005 to the Trust Fund is to include principal due after December 1,
2004 (the "Trust Cut-off Date") plus interest, at the Mortgage Loan Remittance
Rate collected during the related Due Period exclusive of any portion thereof
allocable to a period prior to the Trust Cut-off Date, with the adjustments
specified in clauses (b), (c) and (d) of Section 5.01 of the SWSA.
5. Master Servicing; Termination of Servicer. The Servicer,
including any successor servicer hereunder, shall be subject to the supervision
of the Master Servicer, which Master Servicer shall be obligated to ensure that
the Servicer services the Serviced Mortgage Loans in accordance with the
provisions of this Agreement. The Master Servicer, acting on behalf of the
Trustee and the SARM 2004-19 Trust Fund (the "Trust Fund") created pursuant to
the Trust Agreement, shall have the same rights as the Seller under the SWSA to
enforce the obligations of the Servicer under the SWSA and the term "Purchaser"
as used in the SWSA in connection with any rights of the Purchaser shall refer
to the Trust Fund or, as the 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 Section 10.01 of the SWSA.
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer assume any of the obligations of the Seller under the SWSA and in
connection with the performance of the Master Servicer's duties hereunder the
parties and other signatories hereto agree that the Master Servicer shall be
entitled to all of the rights, protections and limitations of liability afforded
to the Master Servicer under the Trust Agreement.
6. No Representations. Neither Countrywide nor the Servicer nor the
Master Servicer shall be obligated or required to make any representations and
warranties regarding the characteristics of the Serviced Mortgage Loans (other
than those representations and warranties made by Countrywide in Section 3.02 of
the SWSA as of the date of the sale from Countrywide to the Bank) in connection
with the
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transactions contemplated by the Trust Agreement and issuance of the
Certificates issued pursuant thereto.
7. Notices. All notices and communications between or among the
parties hereto (including any third party beneficiary thereof) or required to be
provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
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.
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Mail Stop Code - 3195
Attn: E. Xxxx Xxxxxxxxxx - Xxxxxx Xxxxxxxxx
XXXX 0000-00
Tel: 000-000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled basis to the following wire
account:
JPMorgan Chase Bank, N.A.
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc.,
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SARM 2004-19
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Institutional Trust Services/
Global Debt - SARM 2004-19
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to the Seller hereunder shall be
delivered to the Seller, at the following address:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Dechert, LLP
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All notices required to be delivered to the Servicer hereunder shall be
delivered to its office at the address for notices as set forth in the SWSA.
8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING
NEW YORK OR OTHER CHOICE OF LAW RULES TO THE CONTRARY.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
[SIGNATURE PAGES IMMEDIATELY FOLLOW]
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Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By:
--------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
COUNTRYWIDE HOME LOANS SERVICING LP,
as Servicer
By: Countrywide GP, Inc., its General Partner
By:
--------------------------------------------
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
By:
--------------------------------------------
Name :
Title:
Acknowledged:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:
----------------------------------
Name: E. Xxxx Xxxxxxxxxx
Title Executive Vice President
JPMORGAN CHASE BANK, N.A.,
as Trustee
By:
----------------------------------
Name:
Title:
EXHIBIT A
Modifications to the SWSA
1. Unless otherwise specified herein, any provisions of the SWSA, including
definitions, relating to (i) representations and warranties relating to
the Mortgage Loans and not relating to the servicing of the Mortgage
Loans, (ii) Mortgage Loan repurchase obligations, (iii) Whole Loan and
Pass-Through Transfers and Reconstitution, and (iv) Assignments of
Mortgage, shall be disregarded for purposes relating to this Agreement.
The exhibits to the SWSA and all references to such exhibits shall also
be disregarded.
2. The definition of "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 Xxxxxx Xxx, 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
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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
any Rating Agency;
(v) commercial paper (including both
non-interest-bearing discount obligations and interest-bearing
obligations payable on demand or on a specified date not more
than 180 days after the date of issuance thereof) rated by each
Rating Agency in its highest short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct
ownership interests in future interest or principal payments on
obligations of the United States of America or its agencies or
instrumentalities (which obligations are backed by the full
faith and credit of the United States of America) held by a
custodian in safekeeping on behalf of the holders of such
receipts; and
(viii) any other demand, money market, common trust
fund or time deposit or obligation, or interest-bearing or other
security or investment, (A) rated in the highest rating category
by each Rating Agency or (B) that would not adversely affect the
then current rating by each Rating Agency of any of the
Certificates. Such investments in this subsection (viii) may
include money market mutual funds or common trust funds,
including any fund for which the Trustee, the Master Servicer or
an affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, and/or custodian or
subcustodian, notwithstanding that (x) the Trustee, the Master
Servicer or an affiliate thereof charges and collects fees and
expenses from such funds for services rendered, (y) the Trustee,
the Master Servicer or an affiliate thereof charges and collects
fees and expenses for services rendered pursuant to this
Agreement, and (z) services performed for such funds and
pursuant to this Agreement may converge at any time; provided,
however, that no such instrument shall be an Eligible Investment
if such instrument evidences either (i) a right to receive only
interest payments with respect to the obligations underlying
such instrument, or (ii) both principal and interest payments
derived from obligations underlying such instrument and the
principal and interest payments with respect to such instrument
provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations.
3. A definition of "Xxxxxx Xxx" is hereby added to Article I to immediately
follow the definition of "Xxxxxxx Mac," to read as follows:
Xxxxxx Xxx: The Government National Mortgage Association, or
any successor thereto.
4. The definition of "Mortgage Loan" is hereby amended and restated in its
entirety to read as follows:
Mortgage Loan: An individual servicing retained Mortgage Loan
which has been purchased from the Company by Xxxxxx Brothers
Bank, FSB and is subject to this Agreement being identified on
the Mortgage Loan Schedule to this Agreement, which Mortgage
Loan includes without limitation the Mortgage Loan documents,
the monthly reports, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds and all other rights, benefits, proceeds
and obligations arising from or in connection with such Mortgage
Loan.
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5. The definition of "Mortgage Loan Schedule" is hereby amended and
restated in its entirety to read as follows:
Mortgage Loan Schedule: The schedule of Mortgage Loans attached
as Exhibit D to this Agreement setting forth certain information
with respect to the Mortgage Loans purchased from the Servicer
by Xxxxxx Brothers Bank, FSB pursuant to the SWSA.
6. The definition of "Qualified Depository" is hereby amended and restated
in its entirety to read as follows:
Qualified Depository: Any of (i) a federal or state-chartered
depository institution the accounts of which are insured by the
FDIC and whose commercial paper, short-term debt obligations or
other short-term deposits are rated at least "A-1+" by Standard
& Poor's if the deposits are to be held in the account for less
than 30 days, or whose long-term unsecured debt obligations are
rated at least "AA-" by Standard & Poor's if the deposits are to
be held in the account for more than 30 days, or (ii) the
corporate trust department of a federal or state-chartered
depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of
Federal Regulations Section 9.10(b), which, in either case, has
corporate trust powers, acting in its fiduciary capacity, or
(iii) Xxxxxx Brothers Bank, F.S.B., a federal savings bank.
7. A new definition of "Qualified GIC" is hereby added to Article I to
immediately follow the definition of "Qualified Depository", to read as
follows:
Qualified GIC: A guaranteed investment contract or surety bond
providing for the investment of funds in the Custodial Account
and insuring a minimum, fixed or floating rate of return on
investments of such funds, which contract or surety bond shall:
(a) be an obligation of an insurance company or other
corporation whose long-term debt is rated by each Rating Agency
in one of its two highest rating categories or, if such
insurance company has no long-term debt, whose claims paying
ability is rated by each Rating Agency in one of its two highest
rating categories, and whose short-term debt is rated by each
Rating Agency in its highest rating category;
(b) provide that the Servicer may exercise all of the rights
under such contract or surety bond without the necessity of
taking any action by any other Person;
(c) provide that if at any time the then current credit
standing of the obligor under such guaranteed investment
contract is such that continued investment pursuant to such
contract of funds would result in a downgrading of any rating of
the Servicer, the Servicer shall terminate such contract without
penalty and be entitled to the return of all funds previously
invested thereunder, together with accrued interest thereon at
the interest rate provided under such contract to the date of
delivery of such funds to the Trustee;
(d) provide that the Servicer's interest therein shall be
transferable to any successor Servicer or the Master Servicer
hereunder; and
(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.
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8. The parties acknowledge that the fourth paragraph of Section 2.02 (Books
and Records; Transfers of Mortgage Loans) shall be inapplicable to this
Agreement.
9. The parties acknowledge that Section 2.03 (Delivery of Documents) shall
be superseded by the provisions of the Custodial Agreement.
10. Section 3.01(c) (No Conflicts) is hereby amended by deleting the words
"the acquisition of the Mortgage Loans by the Company, the sale of the
Mortgage Loans to the Purchaser".
11. Section 3.01(f) (Ability to Perform) is hereby amended by deleting the
second sentence thereof.
12. Section 3.01(h) (No Consent Required) is hereby amended by deleting the
words "or the sale of the Mortgage Loans".
13. Section 3.01(i) (Selection Process), Section 3.01(j) (Pool
Characteristics), Section 3.01(l) (Sale Treatment), Section 3.01(n) (No
Brokers' Fees) and Section 3.01 (o) (Origination) shall be inapplicable
to this Agreement.
14. Four new paragraphs are hereby added at the end of Section 3.01 (Company
Representations and Warranties) to read as follows:
It is understood and agreed that the representations and
warranties set forth in Section 3.01 (a) through (h) and (k) are
hereby restated as of the Closing Date and shall survive the
engagement of the Company to perform the servicing
responsibilities hereunder and the delivery of the Servicing
Files to the Company and shall inure to the benefit of the
Trustee, the Trust Fund and the Master Servicer. Upon discovery
by either the Company, the Master Servicer or the Trustee of a
breach of any of the foregoing representations and warranties
which materially and adversely affects the ability of the
Company to perform its duties and obligations under this
Agreement or otherwise materially and adversely affects the
value of the Mortgage Loans, the Mortgaged Property or the
priority of the security interest on such Mortgaged Property or
the interest of the Trustee or the Trust Fund, the party
discovering such breach shall give prompt written notice to the
other.
Within 60 days of the earlier of either discovery by or
notice to the Company of any breach of a representation or
warranty set forth in Section 3.01 which materially and
adversely affects the ability of the Company to perform its
duties and obligations under this Agreement or otherwise
materially and adversely affects the value of the Loans, the
Mortgaged Property or the priority of the security interest on
such Mortgaged Property, the Company shall use its best efforts
promptly to cure such breach in all material respects and, if
such breach cannot be cured, the Company shall, at the Master
Servicer's option, assign the Company's rights and obligations
under this Agreement (or respecting the affected Mortgage Loans)
to a successor servicer selected by the Master Servicer with the
prior consent and approval of the Trustee. Such assignment shall
be made in accordance with Section 12.01.
In addition, the Company shall indemnify (from its own
funds) the Trustee, the Trust Fund and Master Servicer and hold
each of them harmless against any costs resulting from any
claim, demand, defense or assertion based on or grounded upon,
or resulting from, a breach of the Company's representations and
warranties contained in this Agreement. It is understood and
agreed that the remedies set forth in this Section 3.01
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constitute the sole remedies of the Master Servicer, the Trust
Fund and the Trustee respecting a breach of the foregoing
representations and warranties.
Any cause of action against the Company relating to or
arising out of the breach of any representations and warranties
made in Section 3.01 shall accrue upon (i) discovery of such
breach by the Company or notice thereof by the Trustee or Master
Servicer to the Company, (ii) failure by the Company to cure
such breach within the applicable cure period, and (iii) demand
upon the Company by the Trustee or the Master Servicer for
compliance with this Agreement.
15. Section 4.01 (Company to Act as Servicer) is hereby amended as follows:
(i) by deleting the first sentence of the second paragraph
of such section and replacing it with the following:
Consistent with the terms of this Agreement, the Company
may waive, modify or vary any term of any Mortgage Loan or
consent to the postponement of any such term or in any manner
grant indulgence to any Mortgagor if in the Company's reasonable
and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the
Purchaser, provided, however, that unless the Mortgagor is in
default with respect to the Mortgage Loan or such default is, in
the judgment of the Company, imminent, the Company shall not
permit any modification with respect to any Mortgage Loan that
would change the Mortgage Interest Rate, forgive the payment of
principal or interest, reduce or increase the outstanding
principal balance (except for actual payments of principal) or
change the final maturity date on such Mortgage Loan.
(ii) by adding the following to the end of the second
paragraph of such section:
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Company
shall forward to the Master Servicer copies of any documents
evidencing such assumption, modification, consolidation or
extension. Notwithstanding anything to the contrary contained in
this Agreement, the Company shall not make or permit any
modification, waiver or amendment of any term of any Mortgage
Loan that would cause any REMIC created under the Trust
Agreement to fail to qualify as a REMIC or result in the
imposition of any tax under Section 860F(a) or Section 860G(d)
of the Code.
16. Section 4.04 (Establishment of and Deposits to Custodial Account) is
hereby amended as follows:
the words "in trust for the Purchaser of Conventional
Residential Conventional Residential Mortgage Loans, and various
Mortgagors" in the fourth and fifth lines of the first sentence
of the first paragraph shall be replaced by the following: "in
trust for SARM 2004-19 Trust Fund and various Mortgagors".
17. Section 4.05 (Permitted Withdrawals From Custodial Account) is hereby
amended by replacing the words from the word "Purchaser" in the sixth
line of clause (ii) to the end of such clause (ii) with the following:
the Trust Fund; provided however, that in the event that
the Company determines in good faith that any unreimbursed
Monthly Advances will not be recoverable from amounts
representing late recoveries of payments of principal or
interest respecting the particular Mortgage Loan as to which
such Monthly Advance was made or from
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Liquidation Proceeds or Insurance Proceeds with respect to such
Mortgage Loan, the Company may reimburse itself for such amounts
from the Custodial Account, it being understood, in the case of
any such reimbursement, that the Company's right thereto shall
be prior to the rights of the Trust Fund;
18. Section 4.06 (Establishment of and Deposits to Escrow Account) shall be
amended by deleting the words "Purchaser of Conventional Residential
Mortgage Loans, and various Mortgagors" in the fifth line of the first
sentence of the first paragraph, and replacing it with the following:
"in trust for SARM 2004-19 Trust Fund and various Mortgagors."
19. Section 4.15 (Maintenance of LPMI Policy; Claims) is hereby amended by
adding the following sentence to the end of paragraph (a):
The Servicer will notify the Master Servicer or Xxxxxx Brothers
Holdings in the event that the LPMI Policy is terminated.
20. Section 4.16 (Title, Management and Disposition of REO Property) is
hereby amended by (i) replacing the reference to "one year" in the
seventh line of the third paragraph thereof with "three years" and (ii)
adding two new paragraphs after the fourth paragraph thereof to read as
follows:
In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage
Loan, the Company shall dispose of such REO Property not later
than the end of the third taxable year after the year of its
acquisition by the Trust Fund unless the Company has applied for
and received a grant of extension from the Internal Revenue
Service to the effect that, under the REMIC Provisions and any
relevant proposed legislation and under applicable state law,
the applicable Trust REMIC may hold REO Property for a longer
period without adversely affecting the REMIC status of such
REMIC or causing the imposition of a federal or state tax upon
such REMIC. If the Company has received such an extension, then
the Company shall continue to attempt to sell the REO Property
for its fair market value for such period longer than three
years as such extension permits (the "Extended Period"). If the
Company has not received such an extension and the Company is
unable to sell the REO Property within the period ending 3
months before the end of such third taxable year after its
acquisition by the Trust Fund or if the Company has received
such an extension, and the Company is unable to sell the REO
Property within the period ending three months before the close
of the Extended Period, the Company shall, before the end of the
three year period or the Extended Period, as applicable, (i)
purchase such REO Property at a price equal to the REO
Property's fair market value or (ii) auction the REO Property to
the highest bidder (which may be the Company) in an auction
reasonably designed to produce a fair price prior to the
expiration of the three-year period or the Extended Period, as
the case may be. The Trustee shall sign any document or take any
other action reasonably requested by the Company which would
enable the Company, on behalf of the Trust Fund, to request such
grant of extension.
Notwithstanding any other provisions of this Agreement, no REO
Property acquired by the Trust Fund shall be rented (or allowed
to continue to be rented) or otherwise used or held by or on
behalf of the Trust Fund in such a manner, pursuant to any terms
or for a period that would: (i) cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or (ii) result in the imposition
of any tax upon any REMIC included in the Trust Fund.
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(iii) replacing the word "advances" in the sixth line of the fifth
paragraph thereof with "Monthly Advances", and (iv) by adding the
following to the end of such Section:
Prior to acceptance by the Company of an offer to sell any REO
Property, the Company shall notify the Master Servicer of such
offer in writing which notification shall set forth all material
terms of said offer (each a "Notice of Sale"). The Master
Servicer shall be deemed to have approved the sale of any REO
Property unless the Master Servicer notifies the Company in
writing, within five (5) days after its receipt of the related
Notice of Sale, that it disapproves of the related sale, in
which case the Company shall not proceed with such sale.
21. Section 5.01 (Remittances) is hereby amended by adding the following
after the second paragraph of such Section:
All remittances required to be made to the Master
Servicer shall be made to the following wire account or to such
other account as may be specified by the Master Servicer from
time to time:
JPMorgan Chase Bank, N.A.
New York, New York
ABA #: 000-000-000
Account Name: Aurora Loan Services Inc.
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: Aurora Loan Services 2004-19
22. Section 5.02 (Statements to Purchaser) is hereby amended in its entirety
to read as follows:
Section 5.02 Statements to Master Servicer.
Not later than the tenth calendar day of each month, the
Company shall furnish to the Master Servicer an electronic file
providing loan level accounting data for the period ending on
the last Business Day of the preceding month in the format
mutually agreed to between the Company and the Master Servicer.
The information required by Exhibit E is limited to that which
is readily available to the Company and is mutually agreed to by
the Company and Master Servicer.
23. Section 9.01 (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, judgments and any other costs, fees and expenses that any
of such parties may sustain in any way related to 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 the Purchaser, 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, 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, and
promptly pay, discharge and satisfy any judgment or decree which
may
A-7
be entered against it or any of such parties in respect of such
claim. The Company shall follow any written instructions
received from the Trustee in connection with such claim. The
Trustee from the assets of the Trust Fund promptly shall
reimburse the Company for all amounts advanced by it pursuant to
the preceding sentence except when the claim is in any way
related to the Company's indemnification pursuant to Section
6.02, or the failure of the Company to service and administer
the Mortgage Loans in strict compliance with the terms of this
Agreement.
The Trust Fund shall indemnify the Company and hold it
harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments and any other costs, fees and expenses
that the Company may sustain in any way related to the failure
of the Trustee or the Master Servicer to perform its duties in
compliance with the terms of this Agreement.
In the event a dispute arises between an indemnified
party and the Company 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.
24. Section 9.03 (Limitation on Liability of Company and Others) is hereby
amended in its entirety to read as follows:
Neither the Company nor any of the directors, officers,
employees or agents of the Company shall be under any liability
to the Master Servicer, the Trustee, the Trust Fund or the
Certificateholders 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 Company or any such person
against any liability that would otherwise be imposed for its
disregard for, or failure to perform its obligations and duties
under this Agreement, or by reason of any breach of the terms
and conditions of this Agreement. The Company and any director,
officer, employee or agent of the Company shall be entitled to
indemnification by the Trust Fund and will be held harmless
against any loss, liability or expense incurred in connection
with any legal action relating to this Agreement, the Trust
Agreement, or the Certificates other than any loss, liability or
expense incurred by reason of its disregard for, or failure to
perform its obligations and duties hereunder. The Company and
any director, officer, employee or agent of the Company 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 Company shall be under no obligation to
appear in, prosecute or defend any legal action that is not
incidental to its duties to service the Mortgage Loans in
accordance with this Agreement and that in its opinion may
involve it in any expenses or liability; provided, however, that
the Company may in its sole discretion undertake any such action
that it may deem necessary or desirable in respect to this
Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund and the Company shall be entitled
to be reimbursed therefor out of the Custodial Account it
maintains as provided by Section 4.05.
25. Section 10.01 (Events of Default) is hereby amended by:
A-8
(a) changing any reference to "Purchaser" to "Master
Servicer"; and
(b) amending subclause (vii) as follows: "the Company at any
time is neither a Xxxxxx Xxx or Xxxxxxx Mac approved
servicer, and the Master Servicer has not terminated the
rights and obligations of the Company under this
Agreement and replaced the Company with a Xxxxxx Mae or
Xxxxxxx Mac approved servicer within 30 days of the
absence of such approval; or".
26. Section 10.02 (Waiver of Defaults) is hereby amended by changing the
reference to "Purchaser" to "Master Servicer".
27. Section 11.01 (Termination) is hereby amended by restating subclause (ii)
thereof to read as below and adding the following sentence after the first
sentence of Section 11.01:
(ii) mutual consent of the Company and the Master Servicer in
writing, provided such termination is also acceptable to
the Trustee and the Rating Agencies.
At the time of any termination of the Company pursuant
to this Section 11.01, the Company shall be entitled to all
accrued and unpaid Servicing Fees and unreimbursed Servicing
Advances and Monthly Advances; provided, however, in the event
of a termination for cause under Sections 10.01 hereof, such
unreimbursed amounts shall not be reimbursed to the Company
until such amounts are received by the Trust Fund from the
related Mortgage Loans.
28. Section 11.02 (Termination Without Cause) is hereby amended by replacing
all references to "Purchaser" with "Xxxxxx Brothers Holdings."
29. Section 12.01 (Successor to 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 pursuant to
Sections 9.04, 10.01, 11.01(ii) or 11.02, the Master Servicer
shall, in accordance with the provisions of the Trust Agreement
(i) succeed to and assume all of the 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, the Purchaser, 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 Purchaser, 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
A-9
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 12.01 and
shall in no event relieve the Company of the representations and
warranties made pursuant to Sections 3.01 and the remedies
available to the Trust Fund under Section 3.03 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 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 Company and
the Master Servicer an instrument accepting such appointment,
wherein the successor shall make an assumption of the due and
punctual performance and observance of each covenant and
condition to be performed and observed by the Company 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 Sections 9.04, 10.01, 11.01 or 11.02 shall
not affect any claims that (i) the Master Servicer or the
Trustee may have against the Company arising out of the
Company's actions or failure to act, or (ii) the Company may
have against the Trust Fund, prior to any such termination or
resignation.
The Company shall deliver, within three (3) Business
Days of the appointment of a successor Servicer, the funds in
the Custodial Account and Escrow Account and all Collateral
Files, Credit Files and related documents and statements held by
it hereunder to the successor Servicer and the 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 (as a result of a termination of
the Company for cause pursuant to Section 10.01), including,
without limitation, the costs and expenses of the Master
Servicer or any other Person in
A-10
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 Servicer
from its own funds without reimbursement. The Trust Fund shall
be liable for all costs and expenses incurred in connection with
any transfer of servicing hereunder, other than costs and
expenses incurred in connection with a transfer of servicing for
cause as stated above.
30. Section 12.02 (Amendment) is hereby amended and restated in its entirety
as follows:
Section 12.02 (Amendment)
This Agreement may be amended from time to time by
written agreement signed by the Company and the Purchaser, with
the written consent of the Master Servicer and the Trustee.
31. Section 12.04 (Duration of Agreement) is hereby amended by deleting the
last sentence thereof.
32. Section 12.10 (Assignment by Purchaser) is hereby deleted in its
entirety.
33. A new Section 12.12 (Intended Third Party Beneficiaries) is hereby added
to read as follows:
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 Company 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 Company
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.
34. A new Section 12.13 (Officer's Certificate) is hereby added to read as
follows:
By March 15th of each year beginning March 15, 2005, or
at any other time upon thirty (30) days written request, an
officer of the Servicer shall execute and deliver an Officer's
Certificate substantially in the form of Exhibit F attached
hereto, signed by the senior officer in charge of servicing of
the Servicer or any officer to whom that officer reports, to the
Master Servicer for the benefit of such Master Servicer and its
respective officers, directors and affiliates. Notwithstanding
the foregoing, in the event that as to any year a report on Form
10-K is not required to be filed with the Securities and
Exchange Commission with respect to the related securitization
transaction for the prior calendar year, then (i) the Depositor
shall notify the Servicer of that fact, and (ii) the Servicer
shall not be required to provide the Officer's Certificate
described in this Section 12.13.
A-11
EXHIBIT B
Servicing Agreement
SEE EXHIBIT 99.7
B-1
Exhibit C
Assignment and Assumption Agreement
INTENTIONALLY OMITTED
C-1
EXHIBIT D
Schedule of Serviced Mortgage Loans
INTENTIONALLY OMITTED
D-1
EXHIBIT E
STANDARD LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
1. Deal Identifier by Loan
2. SBO Loan Number
3. Loan Number
4. Investor Loan Number
5. Street Address
6. City
7. State
8. Zip Code
9. Original Loan Amount
10. Origination Date
11. First Payment Date
12. Current Loan Amount
13. Current Interest Rate
14. Current P&I Payment Amount
15. Scheduled Balance
16. Scheduled Due Date
17. Next Rate Adjustment Date
18. Next Payment Adjustment Date
19. Loan Term
20. Loan Type
21. Servicing Fee
22. Product Type
23. Property Type
24. Ownership Code
25. Actual Due Date
26. Delinquency Status
27. Reason for Default
28. FC Flag
29. Date Loan Reinstated
30. FC Suspended Date
31. Reason Suspended
32. FC Start Date (referral date)
33. Actual Notice of Intent Date
34. Actual First Legal Date
35. Date Bid Instructions Sent
36. Date F/C Sale Scheduled
37. Foreclosure Actual Sale Date
38. Actual Redemption End Date
39. Occupancy Status
40. Occupancy Status Date
41. Actual Eviction Start Date
42. Actual Eviction Complete Date
43. Loss Mit Workstation Status
44. Loss Mit Flag
45. Loss Mit Type
46. Loss Mit Start Date
47. Loss Mit Approval Date
X-0
00. Loss Mit Removal Date
49. REO Flag
50. Actual REO Start Date
51. REO List Date
52. REO List Price
53. Date REO Offer Received
54. Date REO Offer Accepted
55. REO Scheduled Close Date
56. REO Actual Closing Date
57. REO Net Sales proceeds
58. REO Sales Price
59. Paid Off Code
60. Paid in Full Date
61. MI Certificate Number
62. MI Cost
63. Other Advance Expenses
64. T&I Advances
65. Interest Advances
66. Liquidation Status
67. BK Atty Fees & Costs
68. FC Atty Fees & Costs
69. Eviction Atty Fees & Costs
70. Appraisal, BPO Costs
71. Property Preservation Fees
72. Actual Claim Filed Date
73. Actual Claim Amount Filed
74. Claim Amount Paid
75. Claim Funds Received Date
76. Realized Gain or Loss
77. BK Flag
78. Bankruptcy Chapter
79. Actual Bankruptcy Start Date
80. Actual Payment Plan Start Date
81. Actual Payment Plan End Date
82. Date POC Filed
83. Date Filed Relief/Dismissal
84. Relief/Dismissal Hearing Date
85. Date Relief/Dismissal Granted
86. Post Petition Due Date
87. Prepayment Flag
88. Prepayment Waived
89. Prepayment Premium Collected
90. Partial Prepayment Amount Collected
91. Prepayment Expiration Date
92. Origination Value Date
93. Origination Value Source
94. Original Value Amount
95. FC Valuation Amount
96. FC Valuation Source
97. FC Valuation Date
X-0
00. REO Value Source
99. REO Value(As-is)
100. REO Repaired Value
101. REO Value Date
102. Investor/Security Billing Date Sent
E-3
EXHIBIT F
ANNUAL CERTIFICATION
Aurora Loan Services Inc.
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Mail Stop Code - 3195
Re: Structured Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2004-19
Reference is made to the Reconstituted Servicing Agreement, dated as of December
1, 2004 (the "Agreement"), by and among Xxxxxx Brothers Holdings Inc., as
seller, and Countrywide Home Loans Servicing LP, as servicer (the "Servicer").
I, [identify the certifying individual], a [title] of the Servicer hereby
certify to Aurora Loan Services Inc. (the "Master Servicer"), and its respective
officers, directors and affiliates, and with the knowledge and intent that it
will rely upon this certification, that:
1. I have reviewed the information required to be delivered to the Master
Servicer pursuant to the Servicing Agreement (the "Servicing Information");
2. Based on my knowledge, the information relating to the Mortgage Loans
submitted by the Servicer in its monthly reporting packages delivered to the
Master Servicer with respect to the Transaction, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading as of the date of this
certification;
3. Based on my knowledge, the Servicing Information required to be provided to
the Master Servicer by the Servicer under this Agreement has been provided
to the Master Servicer; and
4. I am responsible for reviewing the activities performed by the Servicer
under this Agreement and based upon the review required hereunder, and
except as disclosed in the Annual Statement of Compliance, the Annual
Independent Certified Public Accountant's Servicing Report and all servicing
reports, officer's certificates and other information relating to the
servicing of the Mortgage Loans submitted to the Master Servicer by the
Servicer, the Servicer has, as of this certification fulfilled its
obligations under this Agreement.
F-1
Name:
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Title:
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Date:
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F-2
