EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of July, 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 (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
the Servicer pursuant to the Flow Mortgage Loan Purchase Agreement, dated as of
June 1, 2004 (the "MLPA") and 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 and Adjustable 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
July 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 JPMorgan Chase Bank, as trustee (the
"Trustee"), pursuant to a trust agreement, dated as of July 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 July 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 July 18, 2004 to
the Trust Fund is to include principal due after July 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 2004-11 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.
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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 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.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: E. Xxxx Xxxxxxxxxx, Master Servicing,
SARM 2004-11
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled basis to the following wire
account:
JPMorgan Chase Bank
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc.,
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services, Inc.
For further credit to: SARM 2004-11
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
JPMorgan Chase Bank
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Institutional Trust Services/Global Debt -
SARM 2004-11
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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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
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: Xxxxxxx X. Xxxxxxxxxx
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,
as Trustee
By:
Name: Xxx Xxxxx
Title: Assistant Vice President
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 Mae, 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 any Rating Agency;
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(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 MLPA and 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
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(e) provide that the funds reinvested thereunder and accrued interest
thereon be returnable to the Custodial Account, as the case may be, not
later than the Business Day prior to any Determination Date.
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.
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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 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
2004-11 Trust Fund and various Mortgagors".
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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 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 2004-11 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.
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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.
(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
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 2004-11
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.
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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 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
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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) 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
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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 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.
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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
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.
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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
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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
98. REO Value Source
99. REO Value(As-is)
100. REO Repaired Value
101. REO Value Date
102. Investor/Security Billing Date Sent
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EXHIBIT F
ANNUAL CERTIFICATION
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000X
Xxxxxx, Xxxxxxxx 00000
Re: Structured Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2004-11
Reference is made to the Reconstituted Servicing Agreement, dated as of July 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.
Name: ____________________________
Title: ____________________________
Date: ____________________________
F-1
