EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of December, 2005, by and between XXXXXX BROTHERS HOLDINGS
INC., a Delaware corporation (the "Seller" or "Xxxxxx Brothers Holdings") and
WASHINGTON MUTUAL BANK (formerly known as Washington Mutual Bank, FA) (the
"Servicer"), a savings association organized under the laws of the United
States, and acknowledged by AURORA LOAN SERVICES LLC, a Delaware limited
liability company ("Aurora"), and U.S. BANK NATIONAL ASSOCIATION, a national
banking association (the "Trustee"), recites and provides as follows recites and
provides as follows:
RECITALS
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Bank") has acquired from the
Servicer, Washington Mutual Bank fsb ("WAMUFSB") and Washington Mutual Bank
("WAMUB") certain conventional, residential, adjustable rate, first lien
mortgage loans (the "Mortgage Loans") pursuant to a Mortgage Loan Purchase and
Sale Agreement among the Servicer, WAMUFSB, WAMUB and the Bank, dated as of
September 1, 2003 (the "Purchase Agreement") and annexed as Exhibit B hereto.
WHEREAS, the Seller has conveyed certain Mortgage Loans identified on
Exhibit C hereto (the "Serviced Mortgage Loans") to Structured Asset Securities
Corporation, a Delaware special purpose corporation ("SASCO"), which in turn has
conveyed the Serviced Mortgage Loans to Xxxxx Fargo Bank, National Association
(the "Trustee"), pursuant to a trust agreement, dated as of December 1, 2005
(the "Trust Agreement"), among the Trustee, Aurora, as master servicer
("Aurora," and, together with any successor master servicer appointed pursuant
to the provisions of the Trust Agreement, the "Master Servicer"), Xxxxx Fargo
Bank, National Association, as securities administrator, (the "Securities
Administrator"), and SASCO.
WHEREAS, the Serviced Mortgage Loans are currently being serviced by
the Servicer pursuant to a Servicing Agreement, dated as of September 1, 2003 by
and between the Bank and the Servicer (the "Servicing Agreement") as amended as
of July 1, 2004, and annexed as Exhibit D hereto.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated
December 1, 2005 (the "Assignment and Assumption Agreement") annexed as Exhibit
E 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 Servicing
Agreement 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 Servicing Agreement.
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
Servicing Agreement shall continue to apply to the Serviced Mortgage Loans, but
only to the extent provided herein and that this Agreement shall govern the
servicing of the Serviced Mortgage Loans for so long as such Serviced Mortgage
Loans remain subject to the provisions of the Trust Agreement.
WHEREAS, the Master Servicer and any successor master servicer shall be
obligated, among other things, to supervise the servicing of the Serviced
Mortgage Loans on behalf of the Trustee, and shall have the right under the
conditions specified herein to terminate for cause the rights and obligations of
the Servicer under this Agreement.
WHEREAS, 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 Servicing
Agreement incorporated by reference herein, shall have the meanings ascribed to
such terms in the Servicing Agreement or Purchase Agreement, as the case may be.
Notwithstanding the foregoing, the term "Agreement" when used in the
Servicing Agreement or the Purchase Agreement shall have the meaning given to
such term in the Servicing Agreement or the Purchase Agreement, as the case may
be.
2. Custodianship. The parties hereto acknowledge that U.S. Bank
National Association will act as custodian of the Collateral Files of the
Serviced Mortgage Loans for 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
applicable Servicing Agreement, except as otherwise provided herein and on
Exhibit A hereto, and that the provisions of the Servicing Agreement, as so
modified and incorporated by reference herein, are and shall be a part of this
Agreement to the same extent as if set forth herein in full. Pursuant to Section
2.17 of the Servicing Agreement, the Servicer acknowledges that a REMIC election
has been or will be made with respect to the Trust, and the Servicer shall
comply with the provisions of Section 2.17 of the Servicing Agreement with
respect to the REMIC provisions
4. Trust Cut-off Date. The parties hereto acknowledge that by operation
of Section 2.5 and Section 3.1 of the Servicing Agreement, the remittance on
January 18, 2005 to the SARM 2005-23 Trust Fund (the "Trust Fund") is to include
principal due after December 1, 2005 (the "Trust Cut-off Date") plus interest,
at the Net Rate collected during the advancing period exclusive of any portion
thereof allocable to a period prior to the Trust Cut-off Date, with the
adjustments specified in Section 3.1 of the relevant Servicing Agreement.
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
Trust Fund created pursuant to the Trust Agreement, shall have the same rights
as the Seller, as owner, under the Servicing Agreement to enforce the
obligations of the Servicer under the Servicing Agreement and the term "Owner"
as used in the Servicing Agreement in connection with any rights of the Owner
shall refer to the Trust Fund or, as the context requires, the Master Servicer
acting in its capacity as agent for the Trust Fund, except with respect to the
Servicer's indemnification of the Trustee and the Trust Fund, or 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 and
the provisions of the Servicing Agreement to the extent unmodified or unamended
herein upon the failure of the Servicer to perform any of its obligations under
this Agreement, which failure results in an Event of Default as provided in
Article 6 of the Servicing Agreement (such Article 6 and Article 7 of the
Servicing Agreement remaining unmodified except for the right to terminate with
respect to the Serviced Mortgage Loans being vested in the Master Servicer
pursuant to this Agreement and as expressly described in Exhibit A hereto).
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer assume any of the obligations of the Owner under the Servicing
Agreement and 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 the Servicer nor the Master Servicer
shall be obligated or required to make any representations or warranties
regarding the characteristics of the Serviced Mortgage Loans in connection with
the transactions contemplated by the Trust Agreement and issuance of the
certificates (the "Certificates") issued pursuant thereto. Notwithstanding the
preceding sentence, the Servicer hereby restates and remakes to the Seller, the
Owner, the Master Servicer, the Trustee and the Trust Fund each representation
and warranty in Section 5.7 of the Servicing Agreement as of December 1, 2005.
7. Waiver and Amendment. The parties hereto agree that by execution of
this Agreement, the Servicer has waived or agreed to modification or amendment
of, with respect to the Serviced Mortgage Loans, certain of the Servicer's
rights that it has pursuant to the provisions of the Servicing Agreement (the
"Waiver"). The Waiver shall extend only to the Serviced Mortgage Loans serviced
under this Agreement, and shall not constitute a waiver or modification of any
of the Servicer's rights under any other provision of the Servicing Agreement
with respect to Mortgage Loans purchased pursuant to the Purchase Agreement
other than the Serviced Mortgage Loans, waive any default by the Owner or impair
any right of the Servicer arising under this Agreement or the Servicing
Agreement, in each case except to the extent expressly so waived in this Section
7. Except as otherwise provided in this Agreement with respect to the Serviced
Mortgage Loans, the Servicing Agreement shall remain in full force and effect.
Notwithstanding the foregoing and with respect to the Serviced Mortgage
Loans, the Servicer shall continue to be entitled to (i) collect its servicing
compensation (including, without limitation, its Servicing Fee), (ii) receive
reimbursement for advances (including, without limitation, Monthly Advances and
Servicing Advances), and (iii) timely receive all or any portion of the related
Collateral Files in connection with its performance of servicing activities
(including, without limitation, in connection with the processing of any
satisfaction or release of any Serviced Mortgage Loans), in accordance with the
terms and conditions of the Servicing Agreement. The Servicer shall be entitled
to enforce the rights set forth in the preceding sentence against the Trust Fund
as the Owner of the Serviced Mortgage Loans.
8. 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:
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Aurora Loan Services LLC
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
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services LLC,
Master Servicing Payment Clearing Account
Account No.: 066-611059
Beneficiary: Aurora Loan Services LLC
For further credit to: SARM 2005-23
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
U.S. Bank National Association
0 Xxxxxxx Xxxxxx
Xxxxxx, X.X. 00000
Attention: Corporate Trust Services
Telephone: (000) 000-0000
Telecopier: (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
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Dechert LLP
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All notices required to be delivered to the Servicer hereunder shall be
delivered to the following address:
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Washington Mutual Bank
0000 Xxxxx Xxxxxx, XXX0000
Xxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Washington Mutual Bank
0000 Xxxxxxx Xxxxxx (Mail Stop N080108)
Xxxxxxxxxx, XX 00000
Attention: Vice President of Investor Reporting
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
9. 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.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
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Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By: _________________________________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
WASHINGTON MUTUAL BANK
as Servicer
By: _________________________________
Name:
Title:
ACKNOWLEDGED BY:
AURORA LOAN SERVICES LLC,
as Master Servicer
By: ______________________________________
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
U.S. BANK NATIONAL ASSOCIATION
as Trustee
By: ______________________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to the Servicing Agreement
1. A new definition of "Best Efforts" is hereby added to Article 1 to
immediately follow the definition of "Applicable Requirements," to read
as follows:
Best Efforts: Efforts determined to be reasonably diligent by
the Servicer in its reasonable discretion. Such efforts do not
require the Servicer to enter into any litigation, arbitration
or other legal or quasi-legal proceeding, nor do they require
the Servicer to advance or expend fees or sums of money in
addition to those specifically set forth in this Agreement.
2. The definition of "Determination Date" in Article 1 is hereby amended
and restated in its entirety, to read as follows:
Determination Date: The fifteenth (15th) day of the calendar
month of the related Monthly Remittance Date (or if such day
is not a Business Day, the Business Day immediately preceding
such day).
3. A new definition of "Mortgage Loan" is hereby added to Article 1 to
immediately follow the definition of "Mortgage Interest Rate," to read
as follows:
Mortgage Loan: An individual servicing retained Mortgage Loan
which has been purchased from Washington Mutual Bank FA,
Washington Mutual Bank fsb or Washington Mutual Bank by Xxxxxx
Brothers Bank, FSB is subject to this Agreement by being
identified on the Mortgage Loan Schedule to this Agreement,
which mortgage loan includes without limitation the rights to
the mortgage loan documents, the monthly reports, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and all other rights, benefits, proceeds
and obligations arising from or in connection with such
Mortgage Loan.
4. A new definition of "Mortgage Loan Schedule" is hereby added to Article
1 to immediately follow the definition of "Mortgage Loan," to read as
follows:
Mortgage Loan Schedule: The schedule of Mortgage Loans setting
forth certain information with respect to the Mortgage Loans
purchased from the Washington Mutual Bank, FA, Washington
Mutual Bank fsb or Washington Mutual Bank by Xxxxxx Brothers
Bank, FSB, which Mortgage Loan Schedule is attached as Exhibit
C to this Reconstituted Servicing Agreement.
5. The definition of "Qualified Depository" is hereby amended and restated
in its entirety to read as follows:
Qualified Depository: Any of (i) a depository the accounts of
which are insured by the FDIC and the debt obligations of
which are rated AA (or its equivalent) or better by each
Rating Agency; (ii) the corporate trust department of any bank
the debt obligations of which are rated at least A-1 or its
equivalent by each Rating Agency; or (iii) the Servicer, so
long as the long-term unsecured debt obligations of the
Servicer are acceptable to either Rating Agency.
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6. A new definition of "Rating Agency" is hereby added to Article 1 to
immediately follow the definition of "Qualified Depository," to read as
follows:
Rating Agency: Either of Xxxxx'x or S&P, or any successor of
the foregoing.
7. Section 2.1 (Identification of Mortgage Loans; Servicer to Act as
Servicer) is hereby amended by adding the following to the end of
Subsection (c):
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Servicer
shall forward to the Master Servicer copies of any documents
evidencing such assumption, modification, consolidation or
extension.
8. Section 2.3 (Collection of Mortgage Loan Payments) is hereby amended by
replacing the words "Continuously from the related Closing Date until
the principal and interest on all of the Mortgage Loans are paid in
full," with "Continuously from December 1, 2005 until the date the
Mortgage Loans cease to be subject to this Agreement."
9. Section 2.4 (Establishment of Account; Deposits in Account) is hereby
amended by:
(i) replacing the words "for Xxxxxx Brothers Bank, FSB, as Owner,
and any successor Owner" with the words "for SARM 2005-23
Trust Fund and various Mortgagors."; and
(ii) adding the following after the last sentence of subsection
(a):
"Further, a copy of such certification or letter agreement
shall be furnished to the Master Servicer within thirty (30)
days of each Closing Date."
10. Section 2.5 (Permitted Withdrawals from the Account) is hereby amended
by deleting the word "and" at the end of clause (vii), by replacing the
period at the end of clause (viii) with a semicolon and by adding the
following new clause (ix):
(ix) to invest funds in the Account in Permitted Investments in
accordance with Section 2.4(d).
11. Section 2.6 (Establishment of Escrow Account; Deposits in Escrow
Account; Escrow Analysis) is hereby amended by:
(i) replacing the words "for Xxxxxx Brothers Bank, FSB, as Owner
and any successor Owner, and certain Mortgagors" with "for
SARM 2005-23 Trust Fund and various Mortgagors."; and
(ii) adding the following after the last sentence of subsection
(a):
"Further, a copy of such certification or letter agreement
shall be furnished to the Master Servicer within thirty (30)
days of each Closing Date."
12. Section 2.12 (Title, Management and Disposition of Real Estate Owned)
is hereby amended by replacing all references to "Owner" with "Trustee"
in paragraph (a).
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13. Section 3.1 (Distributions) is hereby amended as follows:
(i) replacing the word "preceding" in the second line of 3.1(a)
with the word "related;" and
(ii) by adding the following after Section 3.1(c):
(d) 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 LLC,
Master Servicing Payment Clearing Account
Account No.: 066-611059
Beneficiary: Aurora Loan Services LLC
For further credit to: SARM 2005-23
14. Section 4.4 (Statements as to Compliance) is hereby amended as follows:
(i) replacing the reference to the word "Owner" in the second
line of Section 4.4(a) with "Master Servicer";
(ii) inserting the following text at the end of Sections
4.4(a):
The parties understand and agree that the Master
Servicer may, upon request by SASCO, provide a copy of such
Officer's Certificate to SASCO. Upon its receipt of such copy,
SASCO may rely on such Officer's Certificate and shall be
treated for purposes of Section 4.4(a) as if it were a party
entitled to receive servicing reports provided pursuant to
Section 3.2(a).
(iii) replacing the reference to the word "Owner" in the third
line of 4.4(b) with "Master Servicer";
(iv) replacing Exhibit F with the form of Officer's
Certificate set forth on Exhibit F hereto.
(v) inserting the following text at the end of Sections
4.4(b):
The parties understand and agree that the Master
Servicer may, upon request by SASCO, provide a copy of such
Officer's Certificate to SASCO. Upon its receipt of such copy,
SASCO may rely on such Officer's Certificate and shall be
treated for purposes of Section 4.4(b) as if it were a party
entitled to receive servicing reports provided pursuant to
Section 3.2(a).
(vi) replacing the references to the word "Owner" in Section
4.4(c) with "Master Servicer."
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15. Section 4.5 (Annual Independent Public Accountants' Servicing Report)
is hereby amended as follows:
(i) replacing the word "Owner" in the fourth line of Section
4.5 with "Master Servicer"; and
(ii) inserting the following text at the end of Sections 4.5:
The parties understand and agree that the Master
Servicer may, upon request by SASCO, provide a copy of such
accountants' servicing report to SASCO.
16. Section 5.1 (Indemnification; Third Party Claims) is hereby amended by
deleting Subsection (a) and replacing it with the following:
(a) The Servicer agrees to indemnify the Trust Fund and the
Trustee and hold each of them harmless against any and all
third party claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that
any of such parties may sustain in any way related to the
failure of the Servicer to service the Mortgage Loans in
compliance with the terms of this Agreement; provided, a
written request for indemnity by the Master Servicer submitted
directly by the Master Servicer to the Servicer shall be
deemed by the Servicer to be a claim for indemnity by the
Trustee or the Trust Fund pursuant to this Section 5.1(a),
together with the Trust Fund's direction to remit any amounts
due hereunder to the Master Servicer, if the Master Servicer
provides the Servicer with (i) reasonable evidence (x)
confirming that such claim arises out of the Servicer's
failure to service the Mortgage Loans in compliance with this
Agreement and (y) identifying the losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and
expenses incurred by the Master Servicer, and (ii) the
agreement pursuant to which the Trust Fund has agreed to
indemnify the Master Servicer and specifying the applicable
provisions of such agreement; and further provided, however,
the Servicer shall not be liable hereunder with respect to (i)
any action or inaction in accordance with the written
direction or consent of the Trustee, Trust Fund, Master
Servicer or Xxxxxx Brothers Holdings Inc. or (ii) any action
or inaction resulting from the Trustee's, Trust Fund's, Master
Servicer's or Xxxxxx Brothers Holdings Inc.'s failure to cause
any Collateral File (or portion thereof) to be released to the
Servicer pursuant to Sections 2.18 or 4.2(c) or other terms of
this Agreement or (iii) any action or inaction resulting from
the Trust Fund's failure to comply with Section 5.1(b) or
Section 5.6. The Servicer shall promptly notify the Trustee if
a claim is made by a third party with respect to this
Agreement or the Mortgage Loans, that the Servicer determines
in its good faith judgment will materially affect the Trust
Fund's interest in such Mortgage Loans. The Servicer shall
assume (with the prior written consent of the indemnified
party, which consent shall not be unreasonably withheld or
delayed) the defense of any such claim and pay all reasonable
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 indemnified
parties in respect of such claim. The Servicer shall follow
any written instructions received from the Trustee in
connection with such claim. The Servicer shall provide the
Trustee with a written report of all expenses and advances
incurred by the Servicer pursuant to this Section 5.1, and the
Trustee, from the assets of the Trust Fund, shall promptly
reimburse the Servicer for all amounts advanced by the
Servicer pursuant to this Section 5.1(a) except when the claim
is in any way related to the failure of the Servicer to
service and administer the Mortgage Loans in compliance with
the terms of this Agreement or the gross negligence, bad faith
or willful misconduct of the Servicer.
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The Trust Fund shall indemnify the Servicer 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 Servicer may sustain in any way related
to the failure of the Trust Fund to perform its duties in
compliance with the terms of this Agreement.
17. Section 6.1 (Events of Default) is hereby amended by changing all
references to "Owner" with "Master Servicer" in such Section and
deleting Subsection (vi) and replacing it with the following:
(vi) the Servicer 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 Servicer
under this Agreement and replaced the Servicer with a Xxxxxx
Mae or Xxxxxxx Mac approved servicer within 30 days of the
absence of such approval; or
18. The parties hereto acknowledge that the word "Owner" in Section 6.2
(Waiver of Defaults) shall refer to the "Master Servicer with the prior
consent of the Trustee."
19. Section 9.1 (Successor to the Servicer) is hereby amended in its
entirety to read as follows:
(a) Simultaneously with the termination of the
Servicer's responsibilities and duties under this Agreement
pursuant to Sections 5.4, 6.1, 7.1 or 7.2 the Master Servicer
shall, in accordance with the provisions of the Trust
Agreement (i) succeed to and assume all of the Servicer's
responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor meeting the eligibility
requirements of this Agreement, and which shall succeed to all
rights and assume all of the responsibilities, duties and
liabilities of the Servicer under this Agreement
simultaneously with the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement.
Any successor to the Servicer that is not at that time a
servicer of other mortgage loans for the Trust Fund shall be
subject to the approval of the Master Servicer, Xxxxxx
Brothers Holdings Inc., 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 Xxxxxx Brothers Holdings
Inc., as applicable, may make such arrangements for the
compensation of such successor out of payments on the Mortgage
Loans as it and such successor shall agree; provided, however,
that no such compensation shall be in excess of that permitted
the Servicer under this Agreement. In the event that the
Servicer's duties, responsibilities and liabilities under this
Agreement should be terminated pursuant to the aforementioned
sections, the Servicer shall discharge such duties and
responsibilities, and be compensated therefor as provided in
this Agreement, during the period from the date it acquires
knowledge of such termination until the effective date thereof
with the same degree of diligence and prudence which it is
obligated to exercise under this Agreement, and shall take no
action whatsoever that might impair or prejudice the rights or
financial condition of its successor. The resignation or
removal of the Servicer pursuant to the aforementioned
sections shall not become effective until a successor shall be
appointed pursuant to this Section 9.1 and shall in no event
relieve the Servicer of the representations and warranties
made pursuant to Section 5.7 prior to such resignation or
termination, which representations and warranties shall be
applicable to the Servicer notwithstanding any such
resignation or termination of the Servicer, or the termination
of this Agreement.
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(b) Within a reasonable period of time, the Servicer
shall promptly prepare, execute and deliver to the successor
entity any and all documents and other instruments, place in
such successor's possession all Collateral Files and Credit
Files, and do or cause to be done all other acts or things
necessary or appropriate to effect the purposes of such
termination. The Servicer shall cooperate with the Trustee and
the Master Servicer, as applicable, and such successor in
effecting the termination of the Servicer's responsibilities
and rights hereunder and the transfer of servicing
responsibilities to the successor, including without
limitation, the transfer to such successor for administration
by it of all cash amounts which shall at the time be credited
by the Servicer to the Account or the Escrow Account or
thereafter received with respect to the Mortgage Loans, in
each case to which the Servicer is not entitled pursuant to
this Agreement.
(c) Any successor appointed as provided herein shall
execute, acknowledge and deliver to the Trustee, the Servicer
and the Master Servicer an instrument (i) accepting such
appointment, wherein the successor shall make an assumption of
the due and punctual performance and observance of each
covenant and condition to be performed and observed by the
Servicer under this Agreement, whereupon such successor shall
become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer,
with like effect as if originally named as a party to this
Agreement. Any termination or resignation of the Servicer or
termination of this Agreement pursuant to Sections 6.1 or 7.1
shall not affect any claims that the Master Servicer or the
Trustee may have against the Servicer arising out of the
Servicer's actions or failure to act prior to any such
termination or resignation.
(d) The Servicer shall promptly deliver the funds in
the Account and Escrow Account, in each case to which the
Servicer is not entitled pursuant to this Agreement and all
Collateral Files, Credit Files and related documents and
statements held by it hereunder and the Servicer shall account
for all funds and shall execute and deliver such instruments
and do such other things as may reasonably be required to more
fully and definitively vest in the successor all such rights,
powers, duties, responsibilities, obligations and liabilities
of the Servicer.
(e) Upon a successor's acceptance of appointment as
such, the Servicer, the Master Servicer and the Trustee shall
each notify the others of such appointment, but only if and to
the extent of having actual knowledge of such appointment.
(f) Notwithstanding any termination pursuant to this
Agreement, the Servicer shall continue to be entitled to
receive all amounts accrued or owing to it under this
Agreement on or prior to the effective date of such
termination, whether in respect of (i) unreimbursed Servicing
Advances or Monthly Advances, (ii) unpaid Servicing Fees or
REO Management Fees or (iii) or other servicing compensation,
and shall continue to be entitled to the benefits of Section
5.3 notwithstanding any such termination, with respect to
events occurring prior to such termination.
A-6
20. A new Section 9.15 is hereby added to read as follows:
Intended Third Party Beneficiaries. Notwithstanding any
provision herein to the contrary, the parties to this
Agreement agree that it is appropriate, in furtherance of the
intent of such parties as set forth herein, that the Master
Servicer and the Trustee receive the benefit of the provisions
of this Agreement as intended third party beneficiaries of
this Agreement to the extent of such provisions; provided,
however, that no third party beneficiary designation will
extend indemnification rights directly to the Master Servicer.
The Servicer shall only take direction from the Master
Servicer (if direction by the Master Servicer is required
under this Agreement) unless otherwise directed by this
Agreement. Notwithstanding any other terms of this Agreement,
the parties agree that the overriding intent is for the
Servicer to be entitled to deal with and through the Master
Servicer in virtually all circumstances. This intent is not
altered by anything herein, including without limitation, the
following: any third party beneficiary designation of the
Trustee; any requirement that the Servicer give notice to
others with respect to third party claims; any indemnification
of the Servicer for following instructions of others in
selected circumstances; any indemnifications running from the
Servicer to others; or any provisions allowing the Servicer in
any circumstance to rely on instructions from others.
Notwithstanding the foregoing, all rights and obligations of
the Master Servicer and the Trustee hereunder (other than the
Trustee's right to indemnification) shall terminate upon
termination of the Trust Agreement and of the Trust Fund
pursuant to the Trust Agreement; and upon such termination of
the Trust Fund and the Trust Agreement, the Serviced Mortgage
Loans shall no longer be governed by this Agreement but will
be governed by terms of the relevant Servicing Agreement.
A-7
EXHIBIT B
Purchase Agreement
[INTENTIONALLY OMITTED]
EXHIBIT C
Mortgage Loan Schedule
On File at the offices of:
Dechert LLP
Xxxx Centre
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Att: Xxxxxx X. Xxxxxxx
000.000.0000 tel
000.000.0000 Fax
EXHIBIT D
Servicing Agreement
(See Exhibit 99.10)
EXHIBIT E
Assignment and Assumption Agreement
[INTENTIONALLY OMITTED]
EXHIBIT F
SEC CERTIFICATION
[Date]
Aurora Loan Services LLC
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Mail Stop Code - 3195
Re: Structured Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2005-23
--------------------------------------------------------------------
I, [name of certifying individual], a duly elected and acting officer of
Washington Mutual Bank, FA (the "Servicer"), certify pursuant to Section 4.4(b)
of the Servicing Agreement dated as of September 1, 2003 (as from time to time
amended or replaced by a reconstituted servicing or other successor servicing
agreement, the "Servicing Agreement") between the Servicer and Xxxxxx Brothers
Bank, FSB (the "Owner") to the Owner and each other Person entitled to receive
servicing reports provided pursuant to Section 3.2(a) of the Servicing Agreement
(the "Servicing Reports"), each Person, if any, who "controls" the Owner or such
other Person within the meaning of the Securities Act of 1933, as amended, and
their respective officers and directors, with respect to the calendar year
immediately preceding the date of this Certificate (the "Relevant Year"), as
follows:
1. For purposes of this Certificate, "Relevant Information" means the
information in the certificate provided pursuant to Section 4.4(a) of the
Servicing Agreement (the "Annual Compliance Certificate") for the Relevant Year
and the information in all Servicing Reports provided by the Servicer during the
Relevant Year. Based on my knowledge, the Relevant Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein which is necessary to make the
statements made therein, in light of the circumstances under which such
statements were made, not misleading as of the last day of the Relevant Year.
2. The Relevant Information has been provided to those Persons entitled
to receive it.
3. I am responsible for reviewing the activities performed by the
Servicer under the Servicing Agreement during the Relevant Year. Based upon the
review required by the Servicing Agreement and except as disclosed in the Annual
Compliance Certificate or the accountants' statement provided pursuant to
Section 4.5, to the best of my knowledge, the Servicer has fulfilled its
obligations under the Servicing Agreement throughout the Relevant Year.
DATED as of ________ __, 200_.
_________________________________
Name: __________________________
Title: _______________________
