EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of August, 2004, by and between XXXXXX BROTHERS HOLDINGS INC.,
a Delaware corporation (the "Seller"), and BANCMORTGAGE, A DIVISION OF NATIONAL
BANK OF COMMERCE, a federal bank (the "Servicer"), having an office at 000
Xxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, and acknowledged by AURORA
LOAN SERVICES INC., a Delaware corporation ("Aurora"), and HSBC BANK USA,
NATIONAL ASSOCIATION, a national banking association (the "Trustee"), recites
and provides as follows:
RECITALS
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") pursuant to a
Mortgage Loan Sale and Assignment Agreement dated as of August 1, 2004 (the
"Mortgage Loan Sale and Assignment Agreement"), which in turn has conveyed the
Serviced Mortgage Loans to the Trustee, pursuant to a trust agreement, dated as
of August 1, 2004 (the "Trust Agreement"), among the Trustee, Aurora, as master
servicer (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, and SASCO.
WHEREAS, Xxxxxx Brothers Bank, FSB ("Xxxxxx Brothers Bank") acquired
the Serviced Mortgage Loans from the Servicer, which Serviced Mortgage Loans
were either originated or acquired by the Servicer pursuant to the Mortgage Loan
Purchase and Warranties Agreement, dated as of July 11, 2003 (the "Purchase
Agreement"), and annexed as Exhibit B hereto.
WHEREAS, the Serviced Mortgage Loans are currently being serviced by
the Servicer for Xxxxxx Brothers Bank pursuant to a Flow Interim Servicing
Agreement for Conventional, Fixed and Adjustable Rate Residential Mortgage
Loans, dated as of September 16, 2003 (the "Interim Servicing Agreement"), by
and between Xxxxxx Brothers Bank and the Servicer, which is annexed hereto as
Exhibit D.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated as
of August 1, 2004 (the "Assignment and Assumption Agreement") and annexed hereto
as Exhibit F, Xxxxxx Brothers Bank has assigned all of its rights, title and
interest in the Serviced Mortgage Loans as well as all of its rights and
obligations as purchaser under the Purchase Agreement and the Interim Servicing
Agreement to the Seller, and the Seller has accepted such assignment.
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
conditions set forth herein.
WHEREAS, the Seller and the Servicer agree that the provisions of the
Interim 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 Serviced Mortgage Loans for so long as such Serviced Mortgage Loans
remain subject to the provisions of the Trust Agreement and until September 1,
2004 (the "Servicing Transfer Date").
WHEREAS, the Seller and Servicer agree that on the Servicing Transfer
Date the Servicer shall no longer service the Mortgage Loans and shall transfer
servicing of the Mortgage Loans to the successor servicer designated by the
Seller herein.
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 Interim
Servicing Agreement incorporated by reference herein (regardless of whether such
terms are defined in the Interim Servicing Agreement or the Purchase Agreement),
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 Serviced Mortgage Files for
the Trustee pursuant to a Custodial Agreement, dated August 1, 2004, between
U.S. Bank National Association and the Trustee.
3. Servicing Transfer Date. 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
Interim Servicing Agreement, except as otherwise provided herein and on Exhibit
A hereto, and that the provisions of the Interim Servicing Agreement, as so
modified, are and shall be a part of this Agreement to the same extent as if set
forth herein in full. The parties hereto acknowledge and agree that the
Servicing Transfer Date with respect to the Mortgage Loans is September 1, 2004
(or such later date as may be agreed upon by the parties hereto). On such date,
the Servicer shall transfer all servicing of the Mortgage Loans in accordance
with the Interim Servicing Agreement and the Purchase Agreement to the successor
servicer designated by the Seller. The Seller hereby designates Aurora to act as
the Servicer of the Mortgage Loans on and after the Servicing Transfer Date and
to service such Mortgage Loans pursuant to an existing servicing agreement
between the Seller and Aurora.
4. Trust Cut-off Date. The parties hereto acknowledge that by operation
of Subsection 2.05 and Subsection 3.01 of the Interim Servicing Agreement, the
remittance on September 18, 2004 to the Trust Fund is to include principal due
after August 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 clause (b) of Subsection 3.01 of the Interim Servicing
Agreement.
5. Servicing Fee. The obligation of the Trust Fund to pay Servicing Fee
set forth the Interim Servicing Agreement is payable solely from the interest
portion (including recoveries with respect to interest from Liquidation
Proceeds, to the extent permitted by Section 2.05 of the Interim Servicing
Agreement) of the Monthly Payment collected by the Servicer or as otherwise
provided under Section 2.05.
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 Serviced Mortgage Loans in accordance with the provisions
of this Agreement. The Master Servicer, acting on behalf of the Trustee and the
SARM 2004-12 Trust Fund (the "Trust Fund") created pursuant to the Trust
Agreement, shall have the same rights as Xxxxxx Brothers Bank under the Interim
Servicing Agreement to enforce the obligations of the Servicer under the Interim
Servicing Agreement and the term "Purchaser" as used in the Interim Servicing
Agreement 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. Notwithstanding anything herein to the contrary, in no event shall the
Master Servicer assume any of the obligations of Xxxxxx Brothers Bank under the
Interim Servicing Agreement and in connection with the performance of the Master
Servicer's duties hereunder, the parties and other signatories hereto agree that
the Master Servicer shall be entitled to all of the rights, protections and
limitations of liability afforded to the Master Servicer under the Trust
Agreement.
2
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 Serviced Mortgage Loans in connection with
the transactions contemplated by the Trust Agreement and issuance of the
Certificates issued pursuant thereto.
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:
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: E. Xxxx Xxxxxxxxxx, Master Servicing, SARM 2004-12
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All remittances required to be made by the Servicer with respect to the
Mortgage Loans shall be made to the Master Servicer at 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 No.: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SARM 2004-12
3
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Issuer Services, SARM 2004-12
Telephone: 000-000-0000
Facsimile: 000-000-0000
All notices required to be delivered to the Seller hereunder shall be
delivered to the Seller at the following address:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Contract Finance - Xxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to the Servicer hereunder shall be
delivered to the address of its office as set forth in the first paragraph of
this Agreement.
9. 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.
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.
[SIGNATURE PAGES IMMEDIATELY FOLLOWS]
4
Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By: _____________________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Authorized Signatory
BANCMORTGAGE, A DIVISION OF NATIONAL BANK OF COMMERCE,
as Servicer
By: _______________________________________________
Name:
Title:
ACKNOWLEDGED BY:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:____________________________________________
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
By:____________________________________________
Name:
Title
EXHIBIT A
Modifications to the Interim Servicing Agreement
1. 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;
A-1
(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.
2. A definition of "Xxxxxx Xxx" is hereby added to Article I to
immediately follow the definition of "Xxxxxx Mae Guides," to read as
follows:
"Xxxxxx Xxx": The Government National Mortgage Association,
or any successor thereto.
3. A new definition of "Mortgage Loan" is hereby added to Article I to
immediately follow the definition of "Mortgage Impairment Insurance
Policy," to read as follows:
"Mortgage Loan": An individual servicing retained Mortgage
Loan which has been purchased from the Servicer 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.
A-2
4. A new definition of "Mortgage Loan Schedule" is hereby added to Article
I to immediately follow the definition of "Mortgage Loan Remittance
Rate," to read as follows:
"Mortgage Loan Schedule": The schedule of Mortgage Loans
attached as Exhibit C 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
Purchase 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 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.
6. 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;
A-3
(d) provide that the Servicer's interest therein
shall be transferable to any successor Servicer or the Master
Servicer hereunder; and
(e) provide that the funds reinvested thereunder and
accrued interest thereon be returnable to the Custodial
Account, as the case may be, not later than the Business Day
prior to any Determination Date.
7. A new definition of "Rating Agency" is hereby added to Article I to
immediately follow the definition of "Qualified Insurer", to read as
follows:
"Rating Agency": Xxxxx'x Investors Service, Inc., Fitch, Inc.
or Standard & Poor's, a division of the XxXxxx-Xxxx Companies,
Inc., or any successor of the foregoing.
8. Section 2.01 (Seller 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 Seller 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 Seller'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
judgement of the Seller, imminent, the Seller 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 Servicer
shall forward to the Master Servicer copies of any documents
evidencing such assumption, modification, consolidation or
extension. Notwithstanding anything to the contrary contained
in the Interim Servicing Agreement, the Servicer 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.
9. Section 2.03 (Collection of Mortgage Loan Payments) is hereby amended
by replacing the words "Continuously from the date hereof until the
related Servicing Transfer Date" in the first and second lines thereof
to "Continuously from the Closing Date until the date the Mortgage Loan
ceases to be subject to this Agreement".
A-4
10. Section 2.04 (Establishment of and Deposits to Custodial Account) is
hereby amended by:
(i) replacing the words "Xxxxxx Brothers Bank, FSB, Residential
Fixed and Adjustable Rate Mortgage Loans, Group No. 2003-2"
with the words "the SARM 2004-12 Trust Fund".
11. Section 2.05 (Permitted Withdrawals From Custodial Account) is hereby
amended by deleting the word "and" at the end of clause (v), by
replacing the period at the end of clause (vi) with a semicolon and by
adding the following new clauses (vii), (viii) and (ix):
(vii) to invest funds in the Custodial Account in
Eligible Investments in accordance with Section 2.10;
(ix) to transfer funds to another Qualified
Depository in accordance with Section 2.10 hereof.
12. Section 2.06 (Establishment of and Deposits to Escrow Account) is
hereby amended by replacing the words "Xxxxxx Brothers Bank, FSB
Residential Fixed and Adjustable Rate Mortgage Loans, Group No. 2003-2,
and various Mortgagors" with "the SARM 2004-12 Trust Fund."
13. Section 2.17 (Title, Management and Disposition of REO Property) is hereby
amended by:
(i) adding the following paragraph as the third paragraph of
such Section:
Notwithstanding anything to the contrary contained in
this Section 2.17, in connection with a foreclosure or
acceptance of a deed in lieu of foreclosure, in the event the
Servicer has reasonable cause to believe that a Mortgaged
Property is contaminated by hazardous or toxic substances or
wastes, or if the Trustee or the Master Servicer otherwise
requests, an environmental inspection or review of such
Mortgaged Property to be conducted by a qualified inspector
shall be arranged by the Servicer. Upon completion of the
inspection, the Servicer shall provide the Trustee and the
Master Servicer with a written report of such environmental
inspection. In the event that the environmental inspection
report indicates that the Mortgaged Property is contaminated
by hazardous or toxic substances or wastes, the Servicer shall
not proceed with foreclosure or acceptance of a deed in lieu
of foreclosure. In the event that the environmental inspection
report is inconclusive as to the whether or not the Mortgaged
Property is contaminated by hazardous or toxic substances or
wastes, the Servicer shall not, without the prior approval of
the Master Servicer, proceed with foreclosure or acceptance of
a deed in lieu of foreclosure. In such instance, the Master
Servicer shall be deemed to have approved such foreclosure or
acceptance of a deed in lieu of foreclosure unless the Master
Servicer notifies the Servicer in writing, within two (2)
Business Days after its receipt of written notice of the
proposed foreclosure or deed in lieu of foreclosure from the
Servicer, that it disapproves of the related foreclosure or
acceptance of a deed in lieu of foreclosure. The Servicer
shall be reimbursed for all Servicing Advances made pursuant
to this paragraph with respect to the related Mortgaged
Property from the Custodial Account.
A-5
(ii) by replacing the existing third paragraph of such
section (before the amendment made by (i) above) by
the following paragraph:
The Servicer shall use its Best Efforts to dispose of
the REO Property as soon as possible and shall sell such REO
Property in any event within three years after title has been
taken to such REO Property, unless (a) a REMIC election has
not been made with respect to the arrangement under which the
Mortgage Loans and the REO Property are held, and (b) the
Servicer determines, and gives an appropriate notice to the
Master Servicer to such effect, that a longer period is
necessary for the orderly liquidation of such REO Property. If
a period longer than three years is permitted under the
foregoing sentence and is necessary to sell any REO Property,
(i) the Servicer shall report monthly to the Master Servicer
as to the progress being made in selling such REO Property and
(ii) if, with the written consent of the Trustee, a purchase
money mortgage is taken in connection with such sale, such
purchase money mortgage shall name the Servicer as mortgagee,
and such purchase money mortgage shall not be held pursuant to
this Agreement, but instead a separate participation agreement
among the Servicer and Trustee shall be entered into with
respect to such purchase money mortgage. Notwithstanding
anything herein to the contrary, the Servicer shall not be
required to provide financing for the sale of any REO
Property.
(iii) by adding the following paragraph to the end of such
section:
Prior to acceptance by the Servicer of an offer to
sell any REO Property, the Servicer 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 Servicer 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 Servicer shall not
proceed with such sale.
(iv) by adding the following paragraph at the end of such
section:
Notwithstanding any other provisions of this
Agreement, no REO Property acquired by the trust fund provided
for in the Trust Agreement shall be rented (or allowed to
continue to be rented) or otherwise used, held or disposed of
by or on behalf of such trust fund in such a manner or
pursuant to any terms that would: (i) cause such REO Property
to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Internal Revenue Code of
1986, as amended (the "Code"), or (ii) subject any REMIC
provided for in the Trust Agreement to the imposition of any
federal income taxes on income earned from such REO Property,
including any taxes imposed by reason of Sections 860F or 860G
of the Code, unless the Servicer has agreed to indemnify and
hold harmless the trust fund provided for in the Trust
Agreement with respect to the imposition of any such taxes.
14. Section 3.02 (Statements to Purchaser) is hereby amended as follows:
(i) by replacing the first paragraph of such Section in
its entirety by the following two (2) paragraphs:
A-6
Not later than the fifth Business Day of each month,
the Servicer shall furnish to the Master Servicer (a) a
monthly remittance advice in the format set forth in Exhibit
E-1 hereto and a monthly defaulted loan report in the format
set forth in Exhibit E-2 hereto (or in such other format
mutually agreed between the Servicer and the Master Servicer)
as to the accompanying remittance and the period ending on the
last day of the preceding Determination Date and (b) all such
information required pursuant to clause (a) above on a
magnetic tape or other similar media reasonably acceptable to
the Master Servicer.
(ii) by replacing the last paragraph of such Section 3.02
in its entirety with the following paragraph:
Beginning with calendar year 2005, the Servicer shall
prepare and file any and all tax returns, information
statements or other filings for the portion of the tax year
2004 and the portion of subsequent tax years for which the
Servicer has serviced some or all of the Mortgage Loans
hereunder as such returns, information statements or other
filings are required to be delivered to any governmental
taxing authority or to the Master Servicer pursuant to any
applicable law with respect to the Mortgage Loans and the
transactions contemplated hereby. In addition, the Servicer
shall provide the Master Servicer with such information
concerning the Mortgage Loans as is necessary for the Master
Servicer to prepare the Trust Fund's federal income tax return
as the Master Servicer may reasonably request from time to
time.
15. The parties hereto acknowledge that Section 5.01 (Provision of
Information) and Section 5.02 (Financial Statements; Servicing
Facilities) are inapplicable to this Agreement.
16. Section 6.03 (Termination Upon Transfer of Servicing; Termination
Procedures) is hereby amended by replacing all references to
"Purchaser" with "Xxxxxx Brothers Holdings Inc."
17. Sections 8.01 (Indemnification) and 8.02 (Limitation on Liability of
Seller and Others) is replaced by the following:
The Servicer shall indemnify the Trust Fund, the
Depositor, the Trustee and the Master Servicer and hold each
of them harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgements, and any other costs, fees
and expenses that any of such parties may sustain in any way
related to the failure of the Servicer to perform its duties
and service the Mortgage Loans in strict compliance with the
terms of this Agreement. The Servicer immediately shall notify
Xxxxxx Brothers Holdings Inc., the Depositor, 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 judgement 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 Trustee in connection
with such claim. The Trustee, 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 strict
compliance with the terms of this Agreement.
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 Trustee or the Master Servicer to
perform its duties in compliance with the terms of this
Agreement.
A-7
In the event a dispute arises between an indemnified
party and the Servicer 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.
18. The first paragraph of Section 8.03 (Limitation on Resignation and
Assignment by Seller) is hereby amended in its entirety to read as
follows:
The Servicer shall neither assign this Agreement or
the servicing hereunder or delegate its rights or duties
hereunder or any portion hereof (to other than a third party
in the case of outsourcing routine tasks such as taxes,
insurance and property inspection, in which case the Servicer
shall be fully liable for such tasks as if the Servicer
performed them itself) or sell or otherwise dispose of all or
substantially all of its property or assets without the prior
written consent of the Trustee and the Master Servicer, which
consent shall be granted or withheld in the reasonable
discretion of such parties; provided, however, that the
Servicer may assign its rights and obligations hereunder
without prior written consent of the Trustee and the Master
Servicer to any entity that is directly owned or controlled by
the Servicer, and the Servicer guarantees the performance of
such entity hereunder. In the event of such assignment by the
Servicer, the Servicer shall provide the Trustee and the
Master Servicer with a written statement guaranteeing the
successor entity's performance of the Servicer's obligations
under the Agreement.
19. A new Section 12.11 (Intended Third Party Beneficiaries) is hereby
added to read as follows:
Section 12.11 Intended Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary,
the parties to this Agreement agree that it is appropriate, in
furtherance of the intent of such parties as set forth herein,
that the Master Servicer and the Trustee receive the benefit
of the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such
provisions. The Servicer shall have the same obligations to
the Master Servicer and the Trustee as if they were parties to
this Agreement, and the Master Servicer and the Trustee shall
have the same rights and remedies to enforce the provisions of
this Agreement as if they were parties to this Agreement. The
Servicer shall only take direction from the Master Servicer
(if direction by the Master Servicer is required under this
Agreement) unless otherwise directed by this Agreement.
Notwithstanding the foregoing, all rights and obligations of
the Master Servicer and the Trustee hereunder (other than the
right to indemnification) shall terminate upon termination of
the Trust Agreement and of the Trust Fund pursuant to the
Trust Agreement.
20. A new Section 12.12 (Acknowledgement) is hereby added to read as
follows:
Section 12.12 Acknowledgement.
The Servicer hereby acknowledges that the rights of Xxxxxx
Brothers Bank, FSB under the Servicing Agreement, as amended
by this Agreement, will be assigned to SASCO under the
Mortgage Loan Sale and Assignment Agreement, and subsequently
to the Trust Fund under the Trust Agreement and agrees that
the Mortgage Loan Sale and Assignment Agreement and the Trust
Agreement will constitute an assignment and assumption of the
rights of Xxxxxx Brothers Bank, FSB under the Servicing
Agreement to SASCO and the Trust Fund, as applicable. In
addition, the Trust Fund will make a REMIC election. The
Servicer hereby consents to such assignment and assumption and
acknowledges the Trust Fund's REMIC election.
A-8
21. 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 G attached
hereto, signed by the senior officer in charge of servicing of
the Servicer or any officer to whom that officer reports, to
the Master Servicer for the benefit of such Master Servicer
and its respective officers, directors and affiliates.
Notwithstanding the foregoing, in the event that as to any
year a report on Form 10-K is not required to be filed with
the Securities and Exchange Commission with respect to the
related securitization transaction for the prior calendar
year, then (i) the Depositor shall notify the Servicer of that
fact, and (ii) the Servicer shall not be required to provide
the Officer's Certificate described in this Section 12.13.
A-9
EXHIBIT B
Purchase Agreement
[INTENTIONALLY OMITTED]
B-1
EXHIBIT C
Mortgage Loan Schedule
[INTENTIONALLY OMITTED]
C-1
EXHIBIT D
Interim Servicing Agreement
[See Exhibit 99.11]
D-1
EXHIBIT E-1
STANDARD LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
FIELD NAME DESCRIPTION FORMAT
---------- ----------- ------
INVNUM INVESTOR LOAN NUMBER Number no decimals
SERVNUM SERVICER LOAN NUMBER, REQUIRED Number no decimals
BEGSCHEDBAL BEGINNING SCHEDULED BALANCE FOR SCHED/SCHED Number two decimals
BEGINNING TRAIL BALANCE FOR ACTUAL/ACTUAL,
REQUIRED
SCHEDPRIN SCHEDULED PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED Number two decimals
ACTUAL PRINCIPAL COLLECTED FOR ACTUAL/ACTUAL,
REQUIRED, .00 IF NO COLLECTIONS
CURT1 CURTAILMENT 1 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT1DATE CURTAILMENT 1 DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
CURT1ADJ CURTAILMENT 1 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
CURT2 CURTAILMENT 2 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT2DATE CURTAILMENT 2 DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
CURT2ADJ CURTAILMENT 2 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
LIQPRIN PAYOFF, LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
OTHPRIN OTHER PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
PRINREMIT TOTAL PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
INTREMIT NET INTEREST REMIT, INCLUDE PAYOFF INTEREST, Number two decimals
.00 IF NOT APPLICABLE
TOTREMIT TOTAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
ENDSCHEDBAL ENDING SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED Number two decimals
ENDING TRIAL BALANCE FOR ACTUAL/ACTUAL
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDACTBAL ENDING TRIAL BALANCE Number two decimals
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDDUEDATE ENDING ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT DD-MMM-YY
ACTCODE 60 IF PAIDOFF, BLANK IF NOT APPLICABLE Number no decimals
ACTDATE ACTUAL PAYOFF DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
INTRATE INTEREST RATE, REQUIRED Number seven decimals
Example .0700000 for 7.00%
SFRATE SERVICE FEE RATE, REQUIRED Number seven decimals
Example .0025000 for .25%
PTRATE PASS THRU RATE, REQUIRED Number seven decimals
Example .0675000 for 6.75%
PIPMT P&I CONSTANT, REQUIRED Number two decimals
.00 IF PAIDOFF
E-1-1
EXHIBIT E-2
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
E-2-1
48. 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
E-2-2
EXHIBIT F
Assignment and Assumption Agreement
[INTENTIONALLY OMITTED]
F-1
EXHIBIT G
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 2004-12
--------------------------------------------------------------------
Reference is made to the Reconstituted Servicing Agreement, dated as of August
1, 2004 (the "Agreement"), by and among Xxxxxx Brothers Holdings Inc., as
seller, and BancMortgage, a division of National Bank of Commerce, a federal
bank, 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: ____________________________
G-1
