EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of November, 2004, by and among XXXXXX BROTHERS HOLDINGS INC.,
a Delaware corporation ("LBH" or "Seller"), and WACHOVIA Mortgage Corporation.,
a North Carolina corporation (the "Servicer"), AURORA LOAN SERVICES INC., a
Delaware corporation ("Aurora" or "Master Servicer") and acknowledged by
CITIBANK, N.A., as trustee under the Trust Agreement defined below (the
"Trustee"), recites and provides as follows:
RECITALS
WHEREAS, the Servicer and Xxxxxx Brothers Bank, FSB (the "Bank") are
parties to a Flow Purchase, Warranties and Servicing Agreement dated as of July
1, 2004 (Group No. 2004-Flow) annexed as Exhibit B hereto (the "Bank Flow
Agreement"), pursuant to which the Servicer services certain fixed rate, first
lien residential mortgage loans, identified in Schedule I hereto (the "Mortgage
Loans") for the Bank;
WHEREAS, on or prior to the Closing Date (as defined herein), the Bank
and LBH will enter into an Assignment and Assumption Agreement, dated as of
November 1, 2004 (the "Assignment and Assumption Agreement"), pursuant to which
the Bank will assign all of its rights, title and interest in and to the
Mortgage Loans to LBH and LBH will assume all of the rights and obligations of
the Bank under the Bank Flow Agreement, but only to the extent that the Bank
Flow Agreement relates to the Mortgage Loans;
WHEREAS, on the Closing Date, LBH will convey the Mortgage Loans to
Structured Asset Securities Corporation, a Delaware special purpose corporation
("SASCO"), which in turn will convey the Mortgage Loans to the Trustee for the
benefit of the SASCO 2004-22 trust fund (the "Trust Fund") created, pursuant to
a trust agreement, dated as of November 1, 2004 (the "Trust Agreement") among
the Trustee, the Master Servicer and SASCO, as depositor (the "Depositor");
WHEREAS, the Seller desires that the Servicer continue to service the
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 subject to the conditions set forth herein;
WHEREAS, on and after the Closing Date, the Seller and the Servicer
agree that the provisions of the Bank Flow Agreement shall apply to the Mortgage
Loans, as modified by the Agreement, and that this Agreement shall constitute a
"Reconstitution Agreement" in connection with a "Pass-Through Transfer" (as such
terms are defined in the Bank Flow Agreement) which shall govern the Mortgage
Loans for so long as such Mortgage Loans remain subject to the provisions of the
Trust Agreement;
WHEREAS, pursuant to the Trust Agreement, the Master Servicer and any
successor master servicer shall be obligated, among other things, to supervise
the servicing of the Mortgage
Loans on behalf of the Trustee and shall have the right to terminate the rights
and obligations of the Servicer upon the occurrence and continuance of an Event
of Default under this Agreement;
WHEREAS, the Seller and the Servicer intend that the Trustee be a 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. Acknowledgement of Assignment and Assumption. The Servicer hereby
acknowledges that the rights and obligations of the Bank under the Bank Flow
Agreement will be assigned to the Seller effective as of December 15, 2004 (the
"Closing Date") pursuant to the Assignment and Assumption Agreement; that such
rights and obligations, as modified by this Agreement, will, in turn, be
re-assigned by the Seller to SASCO pursuant to a mortgage loan sale and
assignment agreement dated as of November 1, 2004 (the "Mortgage Loan Sale and
Assignment Agreement") between the Seller, as seller, and SASCO, as purchaser;
and that such rights will simultaneously be re-assigned by SASCO to the Trustee
for the benefit of the Trust Fund pursuant to the Trust Agreement. The Servicer
hereby agrees that each of the Assignment and Assumption Agreement, the Mortgage
Loan Sale and Assignment Agreement and the Trust Agreement, respectively, will
constitute a valid assignment and assumption by the Bank of the rights and
obligations of the Bank under the Bank Flow Agreement to the Seller, by the
Seller to SASCO, and of such rights but not obligations by SASCO to the Trust
Fund.
2. Reconstitution; REMIC Election. The Servicer acknowledges that this
Agreement constitutes a "Reconstitution Agreement" in connection with a
"Pass-Through Transfer" and that the Reconstitution Date will be the Closing
Date. The Servicer also acknowledges that the Trust Fund will make a REMIC
election with respect to its holding of the Mortgage Loans and, accordingly, the
restrictions and requirements set forth in Section 4.04 of the Bank Flow
Agreement will be operative for purposes of this Agreement.
3. Custodianship. The parties hereby agree that U.S. Bank National
Association will act as custodian of the Mortgage Files with respect to the
Mortgage Loans for the Trustee pursuant to the Custodial Agreement, dated as of
November 1, 2004, between U.S. Bank National Association and the Trustee.
4. Servicing. The Servicer agrees, with respect to the Mortgage Loans,
to perform and observe the duties, responsibilities and obligations that are to
be performed and observed under the provisions of the Bank Flow Agreement,
except as otherwise provided herein or modified by Exhibit A hereto, and that
the provisions of the Bank Flow Agreement, as so modified, are and shall be a
part of this Agreement to the same extent as if such provisions were set forth
herein in full.
5. Trust Cut-off Date. The parties hereto acknowledge that the
remittance on the December 18, 2004 Remittance Date to the Trust Fund is to
include principal due after
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November 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 the first paragraph of
Section 6.01 of the Bank Flow Agreement.
6. 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 Mortgage Loans in accordance with the provisions of this
Agreement. The Master Servicer, acting on behalf of the Trustee and the Trust
Fund shall have the same rights as the Seller (as assignee of the Bank) under
the Bank Flow Agreement to enforce the obligations of the Servicer under the
Bank Flow Agreement and the term "Purchaser" as used in the Bank Flow Agreement
in connection with any rights of the Purchaser shall refer to the Master
Servicer or the Trustee acting on behalf of 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, as provided in Article X (Default) of the Bank Flow Agreement.
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer be required to assume any of obligations of the Seller under the Bank
Flow Agreement; and, in connection with the performance of the Master Servicer's
duties hereunder, the parties and other signatories hereto agree that the Master
Servicer shall be entitled to all of the rights, protections and limitations of
liability afforded to the Master Servicer under the Trust Agreement.
7. No Representations. Neither the Servicer nor the Master Servicer
shall be obligated or required to make any representations and warranties
regarding the characteristics of the Mortgage Loans in connection with the
transactions contemplated by the Trust Agreement and issuance of the mortgage
pass-through securities issued pursuant thereto.
8. Notices. All notices and communications between or among the parties
hereto (including any third party beneficiary thereof) 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.
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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,
SASCO 2004-22
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: SASCO 2004-22
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
Citibank, N.A.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Citibank Agency & Trust (SASCO 2004-22)
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All written information required to be delivered to the Seller
hereunder shall be delivered to LBH at the following address:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager, Contract Finance
Telephone No.: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Dechert LLP
0000 Xxxx Xxxxxx
0
Xxxxxxxxxxxx, Xxxxxxxxxxxx 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 Section 12.08
of the Bank Flow Agreement.
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8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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.
10. Termination. Upon the termination of the Trust Fund pursuant to
Article VII of the Trust Agreement, this Agreement shall terminate, and
thereafter, the Mortgage Loans shall be serviced in accordance with the terms of
the Bank Flow Agreement. In the event that the Bank Flow Agreement is terminated
prior to the termination of the Trust Fund, the Servicer and the Master Servicer
shall enter into a replacement servicing agreement with respect to the Mortgage
Loans, which agreement shall be similar to the Bank Flow Agreement in all
material respects.
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XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By:
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
WACHOVIA MORTGAGE CORPORATION
as Servicer
By:
--------------------------------------
Name:
Title:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:
--------------------------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
Acknowledged by:
CITIBANK, N.A.,
as Trustee and not individually
By:
-------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
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EXHIBIT A
Modifications to the Bank Flow Agreement
1. The definition of "Custodial Agreement" in Article I is hereby amended
in its entirety to read as follows:
Custodial Agreement: The custodial agreement relating to the
custody of the Mortgage Loans between the Custodian and the
Trustee, as acknowledged by the Seller, the Depositor, the
Master Servicer and the Servicer, dated as of November 1,
2004.
2. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
Custodian: means U.S. Bank National Association and any of its
successors and assigns.
3. The definition of Servicing Fee Rate in Article I is hereby amended to
read as follows:
Servicing Fee: Rate: 0.25% per annum.
4. A new definition of "Sarbanes Certifying Party" shall be added to
Article I immediately after the definition of "SAIF" to read as
follows:
Sarbanes Certifying Party: A Person who provides a
certification required under the Xxxxxxxx-Xxxxx Act of 2002 on
behalf of the Trust Fund.
5. The parties acknowledge that the requirements of the fourth paragraph
of Section 2.02 (Book and Records; Transfer of Mortgage Loans) and
Section 12.13 (Assignment of Purchaser) of the Bank Flow Agreement
shall be inapplicable to this Agreement and that Exhibit G to the Bank
Flow Agreement shall be superceded by the Assignment and Assumption
Agreement.
6. The parties acknowledge that Section 2.03 (Delivery of Documents) shall
be superceded by the provisions of the Custodial Agreement.
7. Section 5.04 (Establishment of and Deposits to Custodial Account) is
hereby amended as follows:
the words "in trust for Xxxxxx Brothers Bank, purchaser of
Conventional Residential Fixed and Adjustable Rate Mortgage
Loans, Group No. 2004-Flow" in the fourth, fifth and sixth
lines of the first sentence of the first paragraph shall be
replaced by the following: "in trust for Citibank, N.A., as
trustee of the SASCO 2004-22 Trust Fund".
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8. Section 5.06 (Establishment of and Deposits to Escrow Account) shall be
amended as follows:
the words "in trust for Xxxxxx Brothers, Bank FSB, purchaser
of Conventional Residential Fixed and Adjustable Rate Mortgage
Loans, Group No. 2004-Flow, and various Mortgagors" in the
fourth, fifth and sixth lines of the first sentence of the
first paragraph shall be replaced by the following: "in trust
for Citibank, N.A., as trustee of the SASCO 2004-22 Trust Fund
and various Mortgagors".
9. Section 6.01 (Remittances) is hereby amended by adding the following as
the third paragraph of such Section:
All remittances required to be made to the Master
Servicer pursuant to this Section 6.01 shall be made on a
scheduled/scheduled basis 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: SASCO 2004-22
10. The first and second paragraphs of Section 6.02 (Statements to
Purchaser) is amended and restated in its entirety to read as follows:
Section 6.02 Statements to Master Servicer.
Not later than the tenth (10th) calendar day of each
month, the Servicer shall furnish to the Master Servicer or
its designee a monthly remittance advice in the format set
forth in Exhibit F-1 hereto and a monthly defaulted loan
report in format set forth in Exhibit F-2 hereto (or in such
other format mutually agreed to between the Servicer and the
Master Servicer) relating to the period ending on the last day
of the preceding calendar month.
At the Master Servicer's request, not more than 60
days after the end of each calendar year, commencing December
31, 2004, the Servicer shall provide (as such information
becomes readily available to Servicer) to the Master Servicer
such information concerning the Mortgage Loans and annual
remittances to the Master Servicer relating thereto as is
necessary for the Trustee to prepare the Trust Fund's federal
income tax return and for any investor in the mortgage
pass-through certificate issued by the Trust Fund to prepare
its required federal income tax return.
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11. Section 7.05 (Annual Officer's Certificate) is hereby amended and
restated in its entirety as follows:
Section 7.05 Annual Officer's Certificate.
(a) On or before March 15th of each calendar year, commencing
March 15, 2005, the Servicer, at its own expense, will deliver
to the Master Servicer and any Sarbanes Certifying Party, a
Servicing Officer's certificate stating, as to each signer
thereof, that (i) a review of the activities of the Servicer
during such preceding fiscal year and of performance under
this Agreement has been made under such officers' supervision,
and (ii) to the best of such officers' knowledge, based on
such review, the Servicer has fulfilled all its obligations
under this Agreement for such year, or, if there has been a
default in the fulfillment of all such obligations, specifying
each such default known to such officer and the nature and
status thereof including the steps being taken by the Servicer
to remedy such default.
(b) For so long as a certificate under the Xxxxxxxx-Xxxxx Act
of 2002, as amended, ("Xxxxxxxx-Xxxxx") is required to be
given on behalf of the Trust Fund, on or before March 15th of
each calendar year, commencing March 15, 2005, or at any other
time that a Sarbanes Certifying Person provides a
certification pursuant to Xxxxxxxx-Xxxxx and upon thirty (30)
days written request of such parties, an officer of the
Servicer shall execute and deliver an Officer's Certificate to
the Sarbanes Certifying Party for the benefit of the Trust
Fund and the Sarbanes Certifying Party and its officers,
directors and affiliates, in a form substantially similar to
Exhibit C hereto, or as may be required by law or regulation.
12. Section 8.04 (Additional Indemnification by the Seller) is hereby
amended in its entirety to read as follows:
The Servicer shall indemnify the Seller, the
Depositor, the Trust Fund, the Trustee and the Master Servicer
(each an "indemnified party") 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 Servicer to perform its duties and service the
Mortgage Loans in compliance with the terms of this Agreement
(including, but not limited to its obligation to provide the
certification pursuant to Section 7.05(b) hereunder) or for
any inaccurate or misleading information provided in the
certification required pursuant to Section 7.05(b). The
Servicer immediately shall notify the relevant indemnified
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, which consent shall
not be unreasonably withheld or delayed) 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 Servicer
shall follow any written instructions received from the
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Master Servicer or the Trustee in connection with such claim.
The Servicer shall provide the Trustee (with a copy to the
Master Servicer) with a written report of all expenses and
advances incurred by the Servicer pursuant to this Section
8.04, and the Trustee (after consultation with the Master
Servicer) from the assets of the Trust Fund promptly shall
reimburse the Servicer for all amounts advanced by it pursuant
to the preceding sentence except when the claim is in any way
relates 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 this Servicer. In the event a dispute arises
between the Servicer and the indemnified party 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 others judicial process,
then the losing party shall indemnify and reimburse the
winning party for all attorney's fees and other costs and
expenses relating to the adjudication of said dispute.
13. Section 10.02 (Waiver of Defaults) is hereby amended by changing the
reference to "Purchaser" to "Master Servicer with the prior written
consent of the Trustee".
14. Section 11.01 (Termination) is hereby amended by restating subclause
(ii) thereof to read as below and adding the following sentence as the
second sentence of Section 11.01:
(ii) mutual consent of the Servicer 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 Servicer
pursuant to Section 11.01, the Servicer 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 pursuant to Section 10.01
hereof, such unreimbursed amounts shall not be reimbursed to
the Servicer until such amounts are received by the Trust Fund
from the related Mortgage Loans or if such amounts are
unrecoverable, from general collections.
15. Section 11.02 (Termination Without Cause) is hereby amended by
replacing the reference to "Purchaser" in clause (iii) with "Seller
(with the prior consent of the Trustee and the Rating Agencies)"
16. The first paragraph of Section 12.01 (Successor to Seller) is hereby
amended in its entirety to read as follows:
Simultaneously with the termination of the Servicer's
responsibilities and duties under this Agreement pursuant to
Sections 8.04, 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 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
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rights and assume all of the responsibilities, duties and
liabilities of the Servicer under this Agreement 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, the Seller, 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 mortgage pass-through securities issued by the Trust Fund.
In connection with such appointment and assumption, the Master
Servicer or the Seller, as applicable, may make such
arrangements for the compensation of such successor out of
payments on 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 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
12.01 and shall in no event relieve the Servicer of the
representations and warranties made pursuant to Sections 4.01
and 4.02 and the remedies available to the Trust Fund under
Section 4.03, it being understood and agreed that the
provisions of Section 4.01, 4.02 and 4.03 shall be applicable
to the Servicer notwithstanding any such resignation or
termination of the Servicer, or the termination of this
Agreement.
17. Section 12.02 (Amendment) is hereby amended by replacing the words "by
written agreement signed by the Seller, as servicer and the Purchaser"
with "by written agreement signed by the Servicer and the Seller, with
the written consent of the Master Servicer and the Trustee".
18. A new Section 12.18 (Intended Third Party Beneficiary) is hereby added
to the Bank Flow Agreement to read as follows:
Section 12.18 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 Trustee receive
the benefit of the provisions of this Agreement as an intended third
party beneficiary of this Agreement to the extent of such provisions.
The Servicer shall have the same obligations to the Trustee as if they
were parties to this Agreement, and the Trustee shall have the same
rights and remedies to enforce the provisions of this Agreement as if
it was a party to this Agreement. The Servicer shall only take
direction from the Master Servicer (if
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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
created pursuant to the Trust Agreement.
19. A new Section 12.19 (Reporting Requirements of the Commission and
Indemnification) is hereby added to the Bank Flow Agreement to read as
follows:
Section 12.19 Reporting Requirements of the Commission and
Indemnification. Notwithstanding any other provision of this Agreement,
the Servicer (i) agrees to negotiate in good faith any amendment or
modification (including an indemnification agreed to in connection
therewith) to this Agreement as may be necessary, in the judgment of
the Depositor and its counsel (as evidenced by an opinion of such
counsel addressed to the Servicer), to comply with any rules
promulgated by the U.S. Securities and Exchange Commission (the
"Commission") and any interpretations thereof by the staff of the
Commission (collectively, "SEC Rules") and (ii) with reasonable notice
and upon written request, provide to the Depositor for inclusion in any
periodic report required to be filed under the Securities and Exchange
Act of 1934, as amended (the "Exchange Act"), such items of information
regarding this Agreement and matters related to the Servicer, including
as applicable (by way of example and not limitation), a description of
any material litigation or governmental action or proceeding involving
the Servicer or its affiliates (collectively, the "Servicer
Information"), provided, that such information shall be required to be
provided by the Servicer only to the extent that such shall be
determined by the Depositor and its counsel (as evidenced by an opinion
of such counsel addressed to the Servicer) to be necessary to comply
with any SEC Rules.
20. Section 12.18 (Exhibits) and Section 12.19 (General Interpretive
Principles) are renumbered Sections 12.20 and Section 12.21,
respectively.
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EXHIBIT B
FLOW PURCHASE, WARRANTIES AND SERVICING AGREEMENT
DATED AS OF JULY 1, 2004
Se Exhibit 99.11
B-1
EXHIBIT C
ANNUAL CERTIFICATION
I, , of Wachovia. (the "Servicer"), certify to
[identify the company submitting to SEC], and its officers, directors, agents
and affiliates (in its role as [identify role] the "Sarbanes Certifying Party"),
and with the knowledge and intent that they will rely upon this
certification, that:
(i) Based on my knowledge, the information relating to the Mortgage
Loans and the servicing thereof submitted by the Servicer to the
Sarbanes Certifying Party which is used in connection with
preparation of the reports on Form 8-K and the annual report on
Form 10-K filed with the SEC with respect to each transaction
listed on the attached Exhibit A, 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;
(ii) The servicing information required to be provided to the Sarbanes
Certifying Party by the Servicer under the relevant servicing
agreements has been provided to the Sarbanes Certifying Party;
(iii) I am responsible for reviewing the activities performed by the
Servicer under the relevant servicing agreements and based upon
the review required by the relevant servicing agreements, and
except as disclosed in the Annual Statement of Compliance, the
Annual Independent 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
Sarbanes Certifying Party, the Servicer has, as of the date of
this certification fulfilled its obligations under the relevant
servicing agreements; and
(iv) I have disclosed to the Sarbanes Certifying Party all significant
deficiencies relating to the Servicer's compliance with the
minimum servicing standards in accordance with a review conducted
in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar standard as set forth in the relevant
servicing agreements.
(v) The Servicer shall indemnify and hold harmless the Sarbanes
Certifying Party and its officers, directors, agents and
affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments
and other costs and expenses arising out of or based upon a breach
by the Servicer or any of its officers, directors, agents or
affiliates of its obligations under this Certification or the
negligence, bad faith or willful misconduct of the Servicer in
connection therewith. If the indemnification provided for herein
is unavailable or insufficient to hold harmless the Sarbanes
Certifying Party, then the Servicer
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agrees that it shall contribute to the amount paid or payable by
the Sarbanes Certifying Party as a result of the losses, claims,
damages or liabilities of the Sarbanes Certifying Party in such
proportion as is appropriate to reflect the relative fault of the
Sarbanes Certifying Party on the one hand and the Servicer on the
other in connection with a breach of the Servicer's obligations
under this Certification or the Servicer's negligence, bad faith
or willful misconduct in connection therewith.
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IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal
of the Servicer.
Dated: By:
---------------------------- ---------------------------
Name:
---------------------------
Title:
---------------------------
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SCHEDULE I
Schedule of Mortgage Loans
[INTENTIONALLY OMITTED]
