EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of March, 2004, by and between XXXXXX BROTHERS HOLDINGS INC.,
a Delaware corporation (the "Seller"), and PINNACLE FINANCIAL CORPORATION, a
Florida S corporation (the "Servicer"), having an office at 0000 Xxxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000, and acknowledged by AURORA LOAN SERVICES INC., a
Delaware corporation ("Aurora"), and HSBC BANK USA (the "Trustee"), recites and
provides as follows:
RECITALS
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Bank") acquired certain
mortgage loans (the "Mortgage Loans") from the Servicer, which Serviced Mortgage
Loans were either originated or acquired by the Servicer pursuant to the Flow
Mortgage Loan Purchase and Warranties Agreement, dated as of February 12, 2004,
by and between the Bank and the Servicer (the "Purchase Agreement").
WHEREAS, the Mortgage Loans are currently being serviced by the
Servicer for Xxxxxx Brothers Bank pursuant to a Flow Interim Servicing Agreement
for conventional fixed rate residential mortgage loans, dated as of February 12,
2004, by and between the Bank and the Servicer (the "Interim Servicing
Agreement"), which is annexed hereto as Exhibit B.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated as
of March 1, 2004 (the "Assignment and Assumption Agreement") and annexed hereto
as Exhibit C, the Bank has assigned all of its rights, title and interest in the
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 has conveyed certain Mortgage Loans identified on
Exhibit D 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 March 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 March 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, 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 April 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 March 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 April 1, 2004. 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 April 18, 2004 to the Trust Fund is to include principal due after
March 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.
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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 2004-4 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.
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 2004-4
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 2004-4
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All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Issuer Services, SARM 2004-4
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: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
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 PAGE IMMEDIATELY FOLLOWS]
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Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Authorized Signatory
PINNACLE FINANCIAL CORPORATION,
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,
as Trustee
By:
---------------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to the Interim Servicing Agreement
1. The definition of "Eligible Investments" in Article I is hereby amended
and restated in its entirety to read as follows:
"Eligible Investments": Any one or more of the obligations and
securities listed below which investment provides for a date
of maturity not later than the Determination Date in each
month:
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by,
the United States of America or any agency or instrumentality
of the United States of America the obligations of which are
backed by the full faith and credit of the United States of
America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued
by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or
any agent of the Trustee, acting in its respective commercial
capacity) incorporated or organized under the laws of the
United States of America or any state thereof and subject to
supervision and examination by federal or state banking
authorities, so long as at the time of investment or the
contractual commitment providing for such investment the
commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company
or deposit institution, as the case may be) have been rated by
each Rating Agency in its highest short-term rating category
or one of its two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by Xxxxxx Mae, Xxxxxx Xxx
or Xxxxxxx Mac with any registered broker/dealer subject to
Securities Investors' Protection Corporation jurisdiction or
any commercial bank insured by the FDIC, if such broker/dealer
or bank has an uninsured, unsecured and unguaranteed
obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities bearing interest or sold at a
discount issued by any corporation incorporated under the laws
of the United States of America or any state thereof which
have a credit rating from each Rating Agency, at the time of
investment or the contractual commitment providing for such
investment, at least equal to one of the two highest long-term
credit rating categories of each Rating Agency; provided,
however, that securities issued by any particular corporation
will not be Eligible Investments to the extent that investment
therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of the
Trust Fund to exceed 20% of the sum of the aggregate principal
balance of the Mortgage Loans; provided, further, that such
securities will not be Eligible Investments if they are
published as being under review with negative implications
from any Rating Agency;
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(v) commercial paper (including both
non-interest-bearing discount obligations and interest-bearing
obligations payable on demand or on a specified date not more
than 180 days after the date of issuance thereof) rated by
each Rating Agency in its highest short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct
ownership interests in future interest or principal payments
on obligations of the United States of America or its agencies
or instrumentalities (which obligations are backed by the full
faith and credit of the United States of America) held by a
custodian in safekeeping on behalf of the holders of such
receipts; and
(viii) any other demand, money market, common trust
fund or time deposit or obligation, or interest-bearing or
other security or investment, (A) rated in the highest rating
category by each Rating Agency or (B) that would not adversely
affect the then current rating by each Rating Agency of any of
the Certificates. Such investments in this subsection (viii)
may include money market mutual funds or common trust funds,
including any fund for which the Trustee, the Master Servicer
or an affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, and/or custodian
or subcustodian, notwithstanding that (x) the Trustee, the
Master Servicer or an affiliate thereof charges and collects
fees and expenses from such funds for services rendered, (y)
the Trustee, the Master Servicer or an affiliate thereof
charges and collects fees and expenses for services rendered
pursuant to this Agreement, and (z) services performed for
such funds and pursuant to this Agreement may converge at any
time; provided, however, that no such instrument shall be an
Eligible Investment if such instrument evidences either (i) a
right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal
and interest payments derived from obligations underlying such
instrument and the principal and interest payments with
respect to such instrument provide a yield to maturity of
greater than 120% of the yield to maturity at par of such
underlying obligations.
2. A definition of "Xxxxxx Xxx" is hereby added to Article I to
immediately follow the definition of "Fidelity Bond," to read as
follows:
"Xxxxxx Mae": 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 Seller by Xxxxxx
Brothers Bank, FSB and is subject to this Agreement being
identified on the Mortgage Loan Schedule to this Agreement,
which Mortgage Loan includes without limitation the Mortgage
Loan documents, the monthly reports, Principal Prepayments,
Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and all other rights,
benefits, proceeds and obligations arising from or in
connection with such Mortgage Loan.
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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 D to this Agreement setting forth certain
information with respect to the Mortgage Loans purchased from
the Seller 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, FSB, 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 Seller 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 Seller, the Seller shall terminate such contract
without penalty and be entitled to the return of all funds
previously invested thereunder, together with accrued interest
thereon at the interest rate provided under such contract to
the date of delivery of such funds to the Trustee;
(d) provide that the Seller's interest therein shall
be transferable to any successor servicer or the Master
Servicer hereunder; and
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(e) provide that the funds reinvested thereunder and
accrued interest thereon be returnable to the Custodial
Account, as the case may be, not later than the Business Day
prior to any Determination Date.
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
judgment 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 Seller
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 Seller 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 Transfer Date" in the first and second lines thereof with
"Continuously from the Closing Date until the date the Mortgage Loan
ceases to be subject to this Agreement".
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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
Rate Mortgage Loans, Group No. 2004-1 and various Mortgagors" with
the words "the SARM 2004-4 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) and (viii):
(vii) to invest funds in the Custodial Account in
Eligible Investments in accordance with Section 2.10; and
(viii) 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 Rate Mortgage Loans, Group No. 2004-1, and various
Mortgagors" with "the SARM 2004-4 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
Seller 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 Seller. Upon completion of the
inspection, the Seller 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 Seller 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 Seller 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 Seller 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
Seller, that it disapproves of the related foreclosure or
acceptance of a deed in lieu of foreclosure. The Seller shall
be reimbursed for all Servicing Advances made pursuant to this
paragraph with respect to the related Mortgaged Property from
the Custodial Account.
(ii) replacing the existing third paragraph of such section
(before the amendment made by (i) above) by the
following paragraph:
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The Seller 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
Seller 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 Seller 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 Seller as mortgagee,
and such purchase money mortgage shall not be held pursuant to
this Agreement, but instead a separate participation agreement
among the Seller and Trustee shall be entered into with
respect to such purchase money mortgage. Notwithstanding
anything herein to the contrary, the Seller shall not be
required to provide financing for the sale of any REO
Property.
(iii) adding the following two (2) paragraphs to the end of
such section:
Prior to acceptance by the Seller of an offer to sell
any REO Property, the Seller 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
Seller 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 Seller shall not proceed with such
sale.
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 Seller 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 last paragraph of such Section 3.02
in its entirety with the following paragraph:
Beginning with calendar year 2005, the Seller 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
Seller 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 Seller
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.
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15. Section 4.04 (Annual Statement as to Compliance) is hereby amended by
replacing "March 31, 2004" with "March 31, 2005."
16. Section 4.05 (Annual Independent Public Accountants' Servicing Report)
is hereby amended by replacing "March 31, 2004" with "March 31, 2005."
17. A new Section 4.07 (SEC Certificate) is hereby added to this Agreement
to read as follows:
Section 4.07 SEC Certificate. By February 28th of
each year, beginning in 2005, or at any other time upon thirty
(30) days written request, an officer of the Seller shall
execute and deliver an Officer's Certificate substantially in
the form of Exhibit F attached hereto, signed by the senior
officer in charge of servicing of the Seller or any officer to
whom that officer reports, to the Master Servicer and
Depositor for the benefit of such the Master Servicer and
their 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 Seller of that
fact, and (ii) the Seller shall not be required to provide the
Officer's Certificate described in this subsection.
18. The parties hereto acknowledge that Section 5.01 (Provision of
Information) and Section 5.02 (Financial Statements; Servicing
Facilities) are inapplicable to this Agreement.
19. Section 6.03 (Termination Upon Transfer of Servicing. Termination
Procedures) is hereby amended by replacing all references to
"Purchaser" in the second and fourth paragraphs with "Xxxxxx Brothers
Holdings Inc."
20. Sections 8.01 (Indemnification) and 8.02 (Limitation on Liability of
Seller and Others) are replaced by the following:
The Seller 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, judgments, and any other costs, fees
and expenses that any of such parties may sustain in any way
related to the failure of the Seller to perform its duties and
service the Mortgage Loans in strict compliance with the terms
of this Agreement. The Seller 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 judgment or decree
which may be entered against it or any of such parties in
respect of such claim. The Seller 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 Seller 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 Seller to service
and administer the Mortgage Loans in strict compliance with
the terms of this Agreement.
A-7
The Trust Fund shall indemnify the Seller 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 Seller 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.
Neither the Seller nor any of the directors,
officers, employees or agents of the Seller shall be under any
liability to Xxxxxx Brothers Holdings Inc., the Trust Fund,
the Depositor, the Trustee or the Master Servicer for any
action taken or for refraining from the taking of any action
in good faith pursuant to this Agreement and at the written
instruction of Xxxxxx Brothers Holdings Inc. or the Master
Servicer, or for errors in judgment, provided, however, that
this provisions shall not protect the Seller or any such
person against any breach of warranties or representations
made herein, or failure to perform its obligation in strict
compliance with any standard of care set forth in this
Agreement, or any liability which would otherwise be imposed
by reason of any breach of the terms and conditions of this
Agreement.
In the event a dispute arises between an indemnified
party and the Seller 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.
21. The first paragraph of Section 8.03 (Limitation on Resignation and
Assignment by Seller) is hereby amended and restated in its entirety to
read as follows:
The Seller 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 Seller shall be fully
liable for such tasks as if the Seller 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 Seller 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 Seller, and the Seller
guarantees the performance of such entity hereunder. In the
event of such assignment by the Seller, the Seller shall
provide the Trustee and the Master Servicer with a written
statement guaranteeing the successor entity's performance of
the Seller's obligations under the Agreement.
A-8
22. 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 Seller 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
Seller 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.
23. A new Section 12.12 (Acknowledgement) is hereby added to read as
follows:
Section 12.12 Acknowledgement. The Seller 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 Seller hereby consents to such assignment
and assumption and acknowledges the Trust Fund's REMIC
election.
A-9
EXHIBIT B
Interim Servicing Agreement
See Exhibit 99.11
B-1
EXHIBIT C
Assignment and Assumption Agreement
[INTENTIONALLY OMITTED]
C-1
EXHIBIT D
Mortgage Loan Schedule
[INTENTIONALLY OMITTED]
D-1
EXHIBIT E-1
FORM OF MONTHLY REMITTANCE ADVICE
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%
Example .0025000 for .25%
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
FIELD NAME DESCRIPTION
---------- -----------
% of MI Coverage % of MI Coverage
Actual MI Claim Filed Date The date the Claim to the MI Company was filed
Actual Bankruptcy Start Date (filing date) Actual Bankruptcy Start Date (filing date)
Actual Claim Amount Filed The amount claimed to the MI company on the MI
claim
Actual Discharge Date Date Bankruptcy was Discharged
Actual Due Date Next Payment Due Date
Actual Eviction Complete Date Actual Eviction Complete Date
Actual Eviction Start Date Actual Eviction Start Date
Actual First Legal Date Actual First Legal Date
Actual Notice of Intent Date (breach letter date) Actual Notice of Intent Date (breach letter date)
Actual Payment Plan End Date The date the Last Pre-petition payment is due from
the Trustee in a chapter 13 BK
Actual Payment Plan Start Date The date the First Pre-petition payment is due from
the Trustee in a chapter 13 BK
Actual Redemption End Date Actual Redemption End Date
Actual REO Start Date The date the account was received by the REO
Department
Appraisal, BPO Costs Total expenses incurred for the purpose of BPO's
or Appraisals.
Bankruptcy Chapter Bankruptcy Chapter 7,11,13
BK Atty Fees & Costs BK Atty Fees & Costs
BK Flag (Man Code) A code that identifies the account as an active
Bankruptcy.
Bnk Case # (7 digit only) Bnk Case # (7 digit only)
City City
Claim Amount Paid MI Claim Amount
Claim Funds Received Date The date the MI Claim funds were received from
the MI Company
Confirmation Hearing Date Confirmation Hearing Date
Current Interest Rate Current Interest Rate
Current Loan Amount Unpaid Principal Balance
Current P&I Payment Amount Current P&I Payment Amount
Date Bid Instructions Sent Date Bid Instructions Sent to Attorney
Date Filed Relief/Dismissal The date the motion for Relief or Dismissal was
filed with the BK Court
Date Loan Reinstated Date Loan Reinstated
Date POC Filed Date proof of claim filed
Date Relief/Dismissal Granted The date the BK court granted the motion for
Relief or Dismissal
Date REO Offer Accepted Date REO Offer Accepted
Date REO Offer Received Date REO Offer Received
Deal Identifier by Loan Security Name/Cross reference Investor ID
(Servicer to Cross reference)
E-2-1
Delinquency Status (Man Code) 30, 60, 90, BK, FC, REO, Claims or a code that can
be decoded to determine the current status of the
account.
Loss Mit Denial Date Loss Mit Denial Date
Eviction Atty Fees & Costs Eviction Atty Fees & Costs
F/B 1st Due (if applicable) F/B 1st Due (if applicable)
F/B Last Due (if applicable) F/B Last Due (if applicable)
FC Atty Fees & Costs FC Atty Fees & Costs
FC Flag A code that identifies the account as an active
Foreclosure.
FC Start Date (referral date) FC Start Date (referral date)
FC Suspended Date FC Suspended Date
FC Valuation Amount The value of the property as determined for the
purpose of foreclosure.
FC Valuation Date The date the property value was determined for the
purpose of foreclosure.
FC Valuation Source The type of valuation that was used to determine
the Fc Valuation amount.
FHA 27011A Transmitted Date FHA 27011A Transmitted Date
FHA 27011B Transmitted Date FHA 27011B Transmitted Date
FHA Case # FHA Case #
FHA Part A Funds Received Date FHA Part A Funds Received Date
First Payment Date First Payment Date
Foreclosure Actual Sale Date Date F/C Sale Held
VA Guarantee % VA Guarantee %
Interest Advances Interest Advances
Investor Loan Number Investor Loan Number
INVESTOR/SECURITY BILLING SENT DATE Date claim submitted to investor
Liquidation Status Type of PIF, S/S, 3rd Party etc.
VA Loan Guarantee Certificate Number VA Loan Guarantee Certificate Number
Loan Number Servicer Loan Number
Loan Term Loan Term
Loan Type Loan Type
Loss Mit Approval Date Loss Mit Approval Date
Loss Mit Flag (Man Code) A code that identifies the account as an active Loss
Mit account.
Loss Mit Removal Date The date the Loss Mit Department determined that
Loss Mit Options were no longer a viable option.
Loss Mit Start Date Loss Mit Set-up Date
Loss Mit Type S/S, Forbearance, Repay, Mod,etc.
Loss Mit Workstation Status Completed, Removed, Active
MI Certificate Number MI Certificate Number
MI Cost Price percentage, lender paid only
MI Coverage Y/N MI Coverage Y/N
Monthly MIP Cost The monthly fee paid to HUD to maintain coverage
on the account.
Next Payment Adjustment Date Next Payment Adjustment Date
Next Rate Adjustment Date Next Rate Adjustment Date
E-2-2
Occupancy Status Occupancy Status
Occupancy Status Date The date the occupancy status reported was
determined.
Original Loan Amount Original Loan Amount
Original Value Amount The value of the property as determined at the
origination of the account.
Origination Date The date the closing occurred to originate the loan.
ORIGINATION VALUE DATE The date the original Value Amount was
determined.
ORIGINATION VALUE SOURCE The type of valuation that was used to determine
the Original Value amount.
Other Advance Expenses Total Advances minus all other/detail and total
Ownership Code
Paid in Full Date Date loan liquidated from system UPB removed
Paid Off Code
Part B Funds Received Date FHA/VA Only
Partial Prepayment Amount Collected
Post Petition Due Date
Prepayment Expiration Date Term
Prepayment Flag
Prepayment Premium Collected
Prepayment Waived
Product Type
Property Condition
PROPERTY PRESERVATION FEES
Property Type
Realized Gain or Loss
Reason for Default
Reason Suspended
Relief/Dismissal Hearing Date
REO Repaired Value
REO Value(As-is)
REO Actual Closing Date
REO Flag (Man Code)
REO List Date
REO List Price
REO Net Sales proceeds
REO Sales Price
REO Scheduled Close Date
REO Value Date
REO VALUE SOURCE
Repay First Due Date
Repay Last Due Date
Repay Next Due Date
Repay Plan Broken Date
Repay Plan Created Date
SBO LOAN NUMBER
Scheduled Balance
Scheduled Due Date
Servicing Fee
X-0-0
Xxxxx
Xxxxxx Xxxxxxx
T&I Advances
Title Approval Letter Received Date
Title Package to HUD Date
Title Package to VA Date
VA Claim Funds Received Date
VA Claim Submitted Date
VA FIRST FUNDS RECEIVED AMOUNT
VA FIRST FUNDS RECEIVED DATE
VA XXX Submitted Date
ZIP CODE
FNMA ACTION CODE
FNMA DELINQUENCY REASON CODE
E-2-4
EXHIBIT F
SEC CERTIFICATION
[Date]
Structured Asset Securities Corporation
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Re: Structured Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2004-4
--------------------------------------------------------------------
Reference is made to the Reconstituted Servicing Agreement dated as of March 1,
2004 (the "Agreement"), by and among Xxxxxx Brothers Holdings Inc. (the "LBH")
and Pinnacle Financial Corporation (the "Servicer") and acknowledged by Aurora
Loan Services, Inc. (the "Master Servicer") and HSBC Bank USA, as Trustee (the
"Trustee"). I, [identify the certifying individual], a [title] of the Servicer,
hereby certify to the Master Servicer and Structured Asset Securities
Corporation (the "Depositor"), and their respective officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed the information required to be delivered to the Master
Servicer pursuant to the Agreement (the "Servicing Information").
2. Based on my knowledge, the Servicing Information does not contain any
material untrue information or omit to state information necessary to make
the Servicing Information, in light of the circumstances under which such
information was provided, not misleading as of the date of this
certification;
3. Based on my knowledge, the Servicing Information has been provided to the
Master Servicer when and as required under the Agreement; and
4. I am responsible for reviewing the activities performed by the Servicer
under the Agreement, and based upon my knowledge and the review required
under the Agreement, and except as disclosed in writing to you on or prior
to the date of this certification either in the accountants' report
required under the Agreement or in disclosure a copy of which is attached
hereto, the Servicer has, for the period covered by the Form 10-K Annual
Report, fulfilled its obligations under this Agreement.
PINNACLE FINANCIAL CORPORATION
Name: ____________________________
Title: ____________________________
Date: ____________________________
F-1
