Exhibit 99.4
EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into as
of the 1st day of April, 2005, by and between XXXXXX BROTHERS HOLDINGS INC., a
Delaware corporation (the "Seller" or "Xxxxxx Brothers Holdings"), INDYMAC BANK,
F.S.B., a Federal Savings Bank (the "Servicer"), and acknowledged by AURORA LOAN
SERVICES LLC, a Delaware limited liability company ("Aurora"), and XXXXX FARGO
BANK, NATIONAL ASSOCIATION (the "Trustee"), recites and provides as follows:
RECITALS
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Bank") acquired certain fixed and
adjustable rate, conventional, first lien, residential mortgage loans from the
Servicer pursuant to the Seller's Warranties and Servicing Agreement between the
Bank and the Servicer, dated as of July 1, 2003 for Conventional Residential
Fixed and Adjustable Rate Mortgage Loans (Group No. 2003-1) (the "SWSA")
attached hereto as Exhibit B.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated April
1, 2005 (the "Assignment and Assumption Agreement") annexed as Exhibit C hereto,
the Seller acquired from the Bank all of the Bank's right, title and interest in
and to the mortgage loans currently serviced under the SWSA and assumed for the
benefit of each of the Servicer and the Bank the rights and obligations of the
Bank as owner of such mortgage loans pursuant to the SWSA.
WHEREAS, the Seller has conveyed the mortgage loans identified on Exhibit
D hereto (the "Serviced Mortgage Loans") to Structured Asset Securities
Corporation, a Delaware special purpose corporation ("SASCO"), which in turn has
conveyed the Serviced Mortgage Loans to the Trustee, pursuant to a trust
agreement, dated as of April 1, 2005 (the "Trust Agreement"), among the Trustee,
Aurora, as master servicer ("Aurora," and, together with any successor master
servicer appointed pursuant to the provisions of the Trust Agreement, the
"Master Servicer") and SASCO.
WHEREAS, the Serviced Mortgage Loans are currently being serviced by the
Servicer pursuant to the SWSA.
WHEREAS, the Seller desires that the Servicer continue to service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
rights of the Seller and the Master Servicer to terminate the rights and
obligations of the Servicer hereunder as set forth herein and to the other
conditions set forth herein.
WHEREAS, the Seller and the Servicer agree that the provisions of the SWSA
shall apply to the Serviced Mortgage Loans, but only to the extent provided
herein and that this Agreement shall govern the Serviced Mortgage Loans for so
long as such Serviced Mortgage Loans remain subject to the provisions of the
Trust Agreement.
WHEREAS, the Master Servicer and any successor master servicer shall be
obligated, among other things, to supervise the servicing of the Serviced
Mortgage Loans on behalf of the Trustee, and shall have the right, under certain
circumstances, to terminate the rights and obligations of the Servicer under
this Agreement.
WHEREAS, the Seller and the Servicer intend that each of the Master
Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Seller and the Servicer hereby agree as
follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this Agreement,
including Exhibit A hereto and any provisions of the SWSA incorporated by
reference herein (regardless of whether such terms are defined in the SWSA),
shall have the meanings ascribed to such terms in the Trust Agreement.
2. Custodianship. The parties hereto acknowledge that U.S. Bank National
Association will act as custodian of the Servicing Files for the Trustee
pursuant to a Custodial Agreement, dated April 1, 2005, between U.S. Bank
National Association and the Trustee.
3. Servicing. The Servicer agrees, with respect to the Serviced Mortgage
Loans, to perform and observe the duties, responsibilities and obligations that
are to be performed and observed under the provisions of the SWSA, except as
otherwise provided herein and on Exhibit A hereto, and that the provisions of
the SWSA, as so modified, are and shall be a part of this Agreement to the same
extent as if set forth herein in full.
4. Trust Cut-off Date. The parties hereto acknowledge that by operation of
Section 4.05 and Section 5.01 of the SWSA, the remittance on May 18, 2005 to the
Trust Fund is to include principal due after April 1, 2005 (the "Trust Cut-off
Date") plus interest, at the Mortgage Loan Remittance Rate collected during the
related Due Period exclusive of any portion thereof allocable to a period prior
to the Trust Cut-off Date, with the adjustments specified in clauses (b), (c),
(d) and (e) of Section 5.01 of the SWSA.
5. Master Servicing; Termination of Servicer. The Servicer, including any
successor servicer hereunder, shall be subject to the supervision of the Master
Servicer, which Master Servicer shall be obligated to ensure that the Servicer
services the Serviced Mortgage Loans in accordance with the provisions of this
Agreement. The Master Servicer, acting on behalf of the Trustee and the SARM
2005-11 Trust Fund (the "Trust Fund") created pursuant to the Trust Agreement,
shall have the same rights as the Seller under the SWSA to enforce the
obligations of the Servicer under the SWSA and the term "Purchaser" as used in
the SWSA in connection with any rights of the Purchaser shall refer to the Trust
Fund or, as the context requires, the Master Servicer acting in its capacity as
agent for the Trust Fund, except as otherwise specified in Exhibit A hereto. The
Master Servicer shall be entitled to terminate the rights and obligations of the
Servicer under this Agreement upon the failure of the Servicer to perform any of
its obligations under this Agreement, which failure results in an Event of
Default as provided in Section 10.01 of the SWSA. Notwithstanding anything
herein to the contrary, in no event shall the Master Servicer assume any of the
obligations of the Seller under the SWSA and in connection with the performance
of the Master Servicer's duties hereunder the parties and other signatories
hereto agree that the Master Servicer shall be entitled to all of the rights,
protections and limitations of liability afforded to the Master Servicer under
the Trust Agreement.
6. 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 (other than those
representations and warranties made by the Servicer in Section 3.02 of
the SWSA hereby restated as of the date of the SWSA) in connection with the
transactions contemplated by the Trust Agreement and issuance of the
Certificates issued pursuant thereto.
7. Notices. All notices and communications between or among the parties
hereto (including any third party beneficiary thereof) or required to be
provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
All notices required to be delivered to the Master Servicer under this
Agreement shall be delivered to the Master Servicer at the following address:
Aurora Loan Services LLC
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Mail Stop Code - 3195
Attn: E. Xxxx Xxxxxxxxxx - Xxxxxx Xxxxxxxxx
XXXX 0000-00
Tel: 000-000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled basis to the following wire
account:
JPMorgan Chase Bank, N.A.
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services LLC,
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services LLC
For further credit to: SARM 2005-11
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
Xxxxx Fargo Bank, National Association
X.X. Xxx 00
Xxxxxxxx, Xxxxxxxx 00000
(or in the case of overnight deliveries:
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services - SARM 2005-11
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: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Dechert, LLP
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All notices required to be delivered to the Servicer hereunder shall be
delivered to its office at the address for notices as set forth in the SWSA.
8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING NEW YORK OR
OTHER CHOICE OF LAW RULES TO THE CONTRARY.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
[SIGNATURE PAGES IMMEDIATELY FOLLOW]
Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By:_________________________________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
INDYMAC BANK, F.S.B.,
as Servicer
By:_________________________________
Name:
Title:
Acknowledged:
AURORA LOAN SERVICES LLC,
as Master Servicer
By:___________________________________
Name: E. Xxxx Xxxxxxxxxx
Title Executive Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Trustee
By:___________________________________
Name: Xxxxxx X. Xxxxxx
Title Vice President
EXHIBIT A
Modifications to the SWSA
4. Unless otherwise specified herein, any provisions of the SWSA, including
definitions, relating to (i) representations and warranties relating to
the Mortgage Loans and not relating to the servicing of the Mortgage
Loans, (ii) Mortgage Loan repurchase obligations, (iii) Whole Loan and
Pass-Through Transfers and Reconstitution, and (iv) Assignments of
Mortgage, shall be disregarded for purposes relating to this Agreement.
The exhibits to the SWSA and all references to such exhibits shall also be
disregarded.
5. The definition of "Determination Date" in Article I is hereby amended as
follows:
Determination Date: With respect to each Remittance Date, the 15th
day of the month in which such Remittance Date occurs, or, if such
15th day is not a Business Day, the succeeding Business Day.
3. 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 Xxx, 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;
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(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;
(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.
4. A definition of "Xxxxxx Xxx" is hereby added to Article I to immediately
follow the definition of "Xxxxxxx Mac," to read as follows:
Xxxxxx Xxx: The Government National Mortgage Association, or any
successor thereto.
5. The definition of "Mortgage Loan" is hereby amended and restated in its
entirety to read as follows:
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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.
6. The definition of "Mortgage Loan Schedule" is hereby amended and restated
in its entirety to read as follows:
Mortgage Loan Schedule: The schedule of Mortgage Loans attached as
Exhibit 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.
7. 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.
8. 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
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interest rate provided under such contract to the date of delivery
of such funds to the Trustee;
(d) provide that the Servicer's interest therein shall be
transferable to any successor Servicer or the Master Servicer
hereunder; and
(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.
9. A new definition of "Realized Loss" is added to Article I immediately
following the definition of "Rating Agency" to read as follows:
Realized Loss: With respect to each Liquidated Mortgage Loan (as
defined in the Trust Agreement), an amount equal to (i) the unpaid
principal balance of such Mortgage Loan as of the date of
liquidation, minus (ii) Liquidation Proceeds received, to the extent
allocable to principal, net of amounts that are reimbursable
therefrom to the Master Servicer or the Company with respect to such
Mortgage Loan (other than Monthly Advances of principal) including
expenses of liquidation.
10. The parties acknowledge that the fourth paragraph of Section 2.02 (Books
and Records; Transfers of Mortgage Loans) shall be inapplicable to this
Agreement.
11. The parties acknowledge that Section 2.03 (Delivery of Documents) shall be
superseded by the provisions of the Custodial Agreement.
12. Section 3.01(c) (No Conflicts) is hereby amended by deleting the words
"the acquisition of the Mortgage Loans by the Company, the sale of the
Mortgage Loans to the Purchaser".
13. Section 3.01(f) (Ability to Perform) is hereby amended by deleting the
second and third sentences thereof.
14. Section 3.01(h) (No Consent Required) is hereby amended by deleting the
words "or the sale of the Mortgage Loans".
15. Section 3.01(i) (Selection Process), Section 3.01(l) (Sale Treatment), and
Section 3.01(n) (No Brokers' Fees) shall be inapplicable to this
Agreement.
16. Four new paragraphs are hereby added at the end of Section 3.01 (Company
Representations and Warranties) to read as follows:
It is understood and agreed that the representations and
warranties set forth in Section 3.01 (a) through (h) and (k) are
hereby restated as of the Closing Date and shall survive the
engagement of the Company to perform the servicing responsibilities
hereunder and the delivery of the Servicing Files to the Company and
shall inure to the benefit of the Trustee, the Trust Fund and the
Master Servicer. Upon discovery by either the Company, the Master
Servicer or the Trustee of a breach of any of the foregoing
representations and warranties which materially and adversely
affects the ability of the Company to perform its duties and
obligations under this Agreement or otherwise materially and
adversely affects the value of the Mortgage Loans, the Mortgaged
Property or the priority of the security interest on such Mortgaged
Property or the interest
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of the Trustee or the Trust Fund, the party discovering such breach
shall give prompt written notice to the other.
Within 60 days of the earlier of either discovery by or notice
to the Company of any breach of a representation or warranty set
forth in Section 3.01 which materially and adversely affects the
ability of the Company to perform its duties and obligations under
this Agreement or otherwise materially and adversely affects the
value of the Loans, the Mortgaged Property or the priority of the
security interest on such Mortgaged Property, the Company shall use
its best efforts promptly to cure such breach in all material
respects and, if such breach cannot be cured, the Company shall, at
the Master Servicer's option, assign the Company's rights and
obligations under this Agreement (or respecting the affected Loans)
to a successor servicer selected by the Master Servicer with the
prior consent and approval of the Trustee. Such assignment shall be
made in accordance with Section 12.01.
In addition, the Company shall indemnify (from its own funds)
the Trustee, the Trust Fund and Master Servicer and hold each of
them harmless against any costs resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a
breach of the Company's representations and warranties contained in
this Agreement. It is understood and agreed that the remedies set
forth in this Section 3.01 constitute the sole remedies of the
Master Servicer, the Trust Fund and the Trustee respecting a breach
of the foregoing representations and warranties.
Any cause of action against the Company relating to or arising
out of the breach of any representations and warranties made in
Section 3.01 shall accrue upon (i) discovery of such breach by the
Company or notice thereof by the Trustee or Master Servicer to the
Company, (ii) failure by the Company to cure such breach within the
applicable cure period, and (iii) demand upon the Company by the
Trustee or the Master Servicer for compliance with this Agreement.
17. Section 4.01 (Company to Act as Servicer) is hereby amended as follows:
(i) by deleting the first, second and third sentences of the second
paragraph of such section and replacing it with the following:
Consistent with the terms of this Agreement, the Company may
waive, modify or vary any term of any Mortgage Loan or consent to
the postponement of any such term or in any manner grant indulgence
to any Mortgagor if in the Company's reasonable and prudent
determination such waiver, modification, postponement or indulgence
is not materially adverse to the Purchaser, provided, however, that
unless the Mortgagor is in default with respect to the Mortgage Loan
or such default is, in the judgment of the Company, imminent, the
Company shall not permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate, forgive
the payment of principal or interest, reduce or increase the
outstanding principal balance (except for actual payments of
principal) or change the final maturity date on such Mortgage Loan.
(ii) by adding the following to the end of the second paragraph of
such section:
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Company shall
forward to the Master Servicer copies of any documents evidencing
such assumption, modification, consolidation or extension.
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Notwithstanding anything to the contrary contained in this
Agreement, the Company shall not make or permit any modification,
waiver or amendment of any term of any Mortgage Loan that would
cause any REMIC created under the Trust Agreement to fail to qualify
as a REMIC or result in the imposition of any tax under Section
860F(a) or Section 860G(d) of the Code.
18. Section 4.04 (Establishment of and Deposits to Custodial Account) is
hereby amended as follows:
the words "in trust for the Purchaser of Conventional
Residential Conventional Residential Fixed and Adjustable rate
Mortgage Loans, Group 2003-1 and various Mortgagors" in the fourth,
fifth and sixth lines of the first sentence of the first paragraph
shall be replaced by the following: "in trust for SARM 2005-11 Trust
Fund and various Mortgagors".
19. Section 4.05 (Permitted Withdrawals From Custodial Account) is hereby
amended by replacing the words from the word "Purchaser" in the sixth line
of clause (ii) to the end of such clause (ii) with the following:
the Trust Fund; provided however, that in the event that the
Company determines in good faith that any unreimbursed Monthly
Advances will not be recoverable from amounts representing late
recoveries of payments of principal or interest respecting the
particular Mortgage Loan as to which such Monthly Advance was made
or from Liquidation Proceeds or Insurance Proceeds with respect to
such Mortgage Loan, the Company may reimburse itself for such
amounts from the Custodial Account, it being understood, in the case
of any such reimbursement, that the Company's right thereto shall be
prior to the rights of the Trust Fund;
20. Section 4.06 (Establishment of and Deposits to Escrow Account) shall be
amended by deleting the words "Purchaser of Conventional Residential
Conventional Residential Fixed and Adjustable rate Mortgage Loans, Group
2003-1 and various Mortgagors" in the fourth, fifth and sixth lines of the
first sentence of the first paragraph, and replacing it with the
following:
"in trust for SARM 2005-11 Trust Fund and various Mortgagors".
21. Section 4.16 (Title, Management and Disposition of REO Property) is hereby
amended by (i) replacing the reference to "one year" in the seventh line
of the third paragraph thereof with "three years" and (ii) adding two new
paragraphs after the fourth paragraph thereof to read as follows:
In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage Loan,
the Company shall dispose of such REO Property not later than the
end of the third taxable year after the year of its acquisition by
the Trust Fund unless the Company has applied for and received a
grant of extension from the Internal Revenue Service to the effect
that, under the REMIC Provisions and any relevant proposed
legislation and under applicable state law, the applicable Trust
REMIC may hold REO Property for a longer period without adversely
affecting the REMIC status of such REMIC or causing the imposition
of a federal or state tax upon such REMIC. If the Company has
received such an extension, then the Company shall continue to
attempt to sell the REO Property for its fair market value for such
period longer than three years as such extension permits (the
"Extended Period"). If the Company has not received such an
extension and the Company is unable to sell the REO Property within
the period ending 3 months before the end of such third taxable year
after its acquisition by the Trust Fund or if the Company has
received such an extension, and the Company is unable to sell the
REO Property within the period ending three months
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before the close of the Extended Period, the Company shall, before
the end of the three year period or the Extended Period, as
applicable, (i) purchase such REO Property at a price equal to the
REO Property's fair market value or (ii) auction the REO Property to
the highest bidder (which may be the Company) in an auction
reasonably designed to produce a fair price prior to the expiration
of the three-year period or the Extended Period, as the case may be.
The Trustee shall sign any document furnished by the Servicer or
take any other action reasonably requested by the Company which
would enable the Company, on behalf of the Trust Fund, to request
such grant of extension.
Notwithstanding any other provisions of this Agreement, no REO
Property acquired by the Trust Fund shall be rented (or allowed to
continue to be rented) or otherwise used by or on behalf of the
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 Code; or (ii)
subject any Trust REMIC to the imposition of any federal income
taxes on the income earned from such REO Property, including any
taxes imposed by reason of Sections 860F or 860G(c) of the Code,
unless the Company has agreed to indemnify and hold harmless the
Trust Fund with respect to the imposition of any such taxes.
(iii) replacing the word "advances" in the sixth line of the fifth
paragraph thereof with "Monthly Advances", and (iv) by adding the
following to the end of such Section:
Prior to acceptance by the Company of an offer to sell any REO
Property, the Company shall notify the Master Servicer of such offer
in writing which notification shall set forth all material terms of
said offer (each a "Notice of Sale"). The Master Servicer shall be
deemed to have approved the sale of any REO Property unless the
Master Servicer notifies the Company in writing, within five (5)
days after its receipt of the related Notice of Sale, that it
disapproves of the related sale, in which case the Company shall not
proceed with such sale.
22. Section 5.01 (Remittances) is hereby amended by replacing the word
"second" in the second paragraph of such Section with the word "first",
and is further amended by adding the following after the second paragraph
of such Section:
All remittances required to be made to the Master Servicer
shall be made to the following wire account or to such other account
as may be specified by the Master Servicer from time to time:
JPMorgan Chase Bank, N.A.
New York, New York
ABA #: 000-000-000
Account Name: Aurora Loan Services LLC
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services LLC
For further credit to: Aurora Loan Services 2005-11
23. Section 5.02 (Statements to Purchaser) is hereby amended in its entirety
to read as follows:
Section 5.02 Statements to Master Servicer.
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The Company shall deliver or cause to be delivered to the
Master Servicer executed copies of the custodial and escrow account
letter agreements pursuant to Sections 4.04 and 4.06 within 30 days
of the Closing Date.
Not later than the tenth calendar day of each month, the
Company shall furnish to the Master Servicer an electronic file
providing loan level accounting data for the period ending on the
last Business Day of the preceding month in a format mutually agreed
to between the Company and the Master Servicer.
24. Section 5.03 (Monthly Advances by Company) is hereby amended by deleting
the last sentence of such Section.
25. Section 6.04 (Annual Statement as to Compliance) is hereby amended by
replacing "March 31, 2004" with "April 1, 2005."
26. Section 6.05 (Annual Independent Public Accountants' Servicing Report) is
hereby amended by replacing "March 31, 2004" with "April 1, 2005."
27. Section 9.01 (Indemnification; Third Party Claims) is hereby amended in
its entirety to read as follows:
The Company shall indemnify the Purchaser, the Trust Fund, the
Trustee and the Master Servicer and hold each of them harmless
against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses that any of such
parties may sustain in any way related to the failure of the Company
to perform its duties and service the Mortgage Loans in strict
compliance with the terms of this Agreement. The Company immediately
shall notify the Purchaser, the Master Servicer and the Trustee or
any other relevant party if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans, assume (with the
prior written consent of the indemnified party, which consent shall
not be unreasonably withheld or delayed) the defense of any such
claim and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment
or decree which may be entered against it or any of such parties in
respect of such claim. The Company shall follow any written
instructions received from the Trustee in connection with such
claim. The Company shall provide the Trustee with a written report
of all expenses and advances incurred by the Company pursuant to
this Section 9.01, and the Trustee from the assets of the Trust Fund
promptly shall reimburse the Company for all amounts advanced by it
pursuant to the preceding sentence except when the claim is in any
way relates to the failure of the Company to service and administer
the Mortgage Loans in strict compliance with the terms of this
Agreement or the gross negligence, bad faith or willful misconduct
of this Company.
28. Section 9.03 (Limitation on Liability of Company and Others) is hereby
amended in its entirety to read as follows:
Neither the Company nor any of the directors, officers,
employees or agents of the Company shall be under any liability to
the Master Servicer, the Trustee, or the Certificateholders for any
action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Company
or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in
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its performance of its duties or by reason of reckless disregard for
its obligations and duties under this Agreement. The Company and any
director, officer, employee or agent of the Company shall be
entitled to indemnification by the Trust Fund and will be held
harmless against any loss, liability or expense incurred in
connection with any legal action relating to this Agreement, the
Trust Agreement, or the Certificates other than any loss, liability
or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of his or its duties hereunder or by
reason of reckless disregard of his or its obligations and duties
hereunder. The Company and any director, officer, employee or agent
of the Company may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Company shall be under no
obligation to appear in, prosecute or defend any legal action that
is not incidental to its duties to service the Mortgage Loans in
accordance with this Agreement and that in its opinion may involve
it in any expenses or liability; provided, however, that the Company
may in its sole discretion undertake any such action that it may
deem necessary or desirable in respect to this Agreement and the
rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and
costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund and the Company
shall be entitled to be reimbursed therefor out of the Custodial
Account it maintains as provided by Section 4.05.
29. Section 10.01 (Events of Default) is hereby amended by:
(a) changing any reference to "Purchaser" to "Master Servicer";
and
(b) amending subclause (vii) as follows: "the Company at any time
is neither a Xxxxxx Xxx or Xxxxxxx Mac approved servicer, and
the Master Servicer has not terminated the rights and
obligations of the Company under this Agreement and replaced
the Company with a Xxxxxx Mae or Xxxxxxx Mac approved servicer
within 30 days of the absence of such approval; or".
30. Section 10.02 (Waiver of Defaults) is hereby amended by changing the
reference to "Purchaser" to "Master Servicer".
31. Section 11.01 (Termination) is hereby amended by restating subclause (ii)
thereof to read as below and adding the following sentence after the first
sentence of Section 11.01:
(ii) mutual consent of the Company and the Trustee in writing,
provided such termination is also acceptable to the Master
Servicer and the Rating Agencies.
At the time of any termination of the Company pursuant to
Section 11.01, the Company shall be entitled to all accrued and
unpaid Servicing Fees and unreimbursed Servicing Advances and
Monthly Advances; provided, however, in the event of a termination
for cause under Sections 10.01 hereof, such unreimbursed amounts
shall not be reimbursed to the Company until such amounts are
received by the Trust Fund from the related Mortgage Loans.
32. Section 11.02 (Termination Without Cause) is hereby amended by replacing
the first reference to "Purchaser" with "Xxxxxx Brothers Holdings" and by
replacing all other references to "Purchaser" with "Xxxxxx Brothers
Holdings."
33. Section 12.01 (Successor to Company) is hereby amended in its entirety to
read as follows:
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Simultaneously with the termination of the Company's
responsibilities and duties under this Agreement pursuant to
Sections 8.04, 10.01, 11.01(ii) or 11.02, the Master Servicer shall,
in accordance with the provisions of the Trust Agreement (i) succeed
to and assume all of the Company's responsibilities, rights, duties
and obligations under this Agreement, or (ii) appoint a successor
meeting the eligibility requirements of this Agreement, and which
shall succeed to all rights and assume all of the responsibilities,
duties and liabilities of the Company under this Agreement with the
termination of the Company's responsibilities, duties and
liabilities under this Agreement. Any successor to the Company that
is not at that time a servicer of other mortgage loans for the Trust
Fund shall be subject to the approval of the Master Servicer, the
Purchaser, the Trustee and each Rating Agency (as such term is
defined in the Trust Agreement). Unless the successor servicer is at
that time a servicer of other mortgage loans for the Trust Fund,
each Rating Agency must deliver to the Trustee a letter to the
effect that such transfer of servicing will not result in a
qualification, withdrawal or downgrade of the then-current rating of
any of the Certificates. In connection with such appointment and
assumption, the Master Servicer or the Purchaser, as applicable, may
make such arrangements for the compensation of such successor out of
payments on the Mortgage Loans as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of
that permitted the Company under this Agreement. In the event that
the Company's duties, responsibilities and liabilities under this
Agreement should be terminated pursuant to the aforementioned
sections, the Company shall discharge such duties and
responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with
the same degree of diligence and prudence which it is obligated to
exercise under this Agreement, and shall take no action whatsoever
that might impair or prejudice the rights or financial condition of
its successor. The resignation or removal of the Company pursuant to
the aforementioned sections shall not become effective until a
successor shall be appointed pursuant to this Section 12.01 and
shall in no event relieve the Company of the representations and
warranties made pursuant to Sections 3.01 and 3.02 and the remedies
available to the Trust Fund under Section 3.03 shall be applicable
to the Company notwithstanding any such resignation or termination
of the Company, or the termination of this Agreement.
Within a reasonable period of time, but in no event longer
than 30 days of the appointment of a successor entity, the Company
shall prepare, execute and deliver to the successor entity any and
all documents and other instruments, place in such successor's
possession all Servicing Files, and do or cause to be done all other
acts or things necessary or appropriate to effect the purposes of
such notice of termination. The Company shall cooperate with the
Trustee and the Master Servicer, as applicable, and such successor
in effecting the termination of the Company's responsibilities and
rights hereunder and the transfer of servicing responsibilities to
the successor servicer, including without limitation, the transfer
to such successor for administration by it of all cash amounts which
shall at the time be credited by the Company to the Account or any
Escrow Account or thereafter received with respect to the Mortgage
Loans.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Trustee, the Company and the Master
Servicer an instrument accepting such appointment, wherein the
successor shall make an assumption of the due and punctual
performance and observance of each covenant and condition to be
performed and observed by the Company under this Agreement,
whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and
liabilities of the Company, with like effect as if originally named
as a party to this
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Agreement. Any termination or resignation of the Company or
termination of this Agreement pursuant to Sections 8.04, 10.01,
11.01 or 11.02 shall not affect any claims that the Master Servicer
or the Trustee may have against the Company arising out of the
Company's actions or failure to act prior to any such termination or
resignation.
The Company shall deliver, within three (3) Business Days of
the appointment of a successor Servicer, the funds in the Custodial
Account and Escrow Account and all Collateral Files, Credit Files
and related documents and statements held by it hereunder to the
successor Servicer and the Company shall account for all funds and
shall execute and deliver such instruments and do such other things
as may reasonably be required to more fully and definitively vest in
the successor all such rights, powers, duties, responsibilities,
obligations and liabilities of the Company.
Upon a successor's acceptance of appointment as such, the
Company shall notify the Trustee and Master Servicer of such
appointment in accordance with the notice procedures set forth
herein.
Except as otherwise provided in this Agreement, all reasonable
costs and expenses incurred in connection with any transfer of
servicing hereunder (whether as a result of termination or removal
of the Company or resignation of the Company or otherwise),
including, without limitation, the costs and expenses of the Master
Servicer or any other Person in appointing a successor servicer, or
of the Master Servicer in assuming the responsibilities of the
Company hereunder, or of transferring the Servicing Files and the
other necessary data to the successor servicer shall be paid by the
terminated, removed or resigning Servicer from its own funds without
reimbursement.
34. Section 12.02 (Amendment) is hereby amended and restated in its entirety
as follows:
Section 12.02 (Amendment)
This Agreement may be amended from time to time by written
agreement signed by the Company and the Purchaser, with the written
consent of the Master Servicer and the Trustee.
35. Section 12.04 (Duration of Agreement) is hereby amended by deleting the
last sentence thereof.
36. Section 12.10 (Assignment by Purchaser) is hereby deleted in its entirety.
37. Section 12.11 (No Personal Solicitation) is hereby amended by replacing
the words "the Purchaser" with "Xxxxxx Brothers Holdings" in each
instance.
38. A new Section 12.13 (Intended Third Party Beneficiaries) is hereby added
to read as follows:
Notwithstanding any provision herein to the contrary, the
parties to this Agreement agree that it is appropriate, in
furtherance of the intent of such parties as set forth herein, that
the Master Servicer and the Trustee receive the benefit of the
provisions of this Agreement as intended third party beneficiaries
of this Agreement to the extent of such provisions. The Company
shall have the same obligations to the Master Servicer and the
Trustee as if they were parties to this Agreement, and the Master
Servicer and the Trustee shall have the same rights and remedies to
enforce the provisions of this Agreement as if they were parties to
this Agreement. The Company shall only take direction from the
Master Servicer (if direction by the Master Servicer is required
under
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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.
39. A new Section 12.14 (Officer's Certificate) is hereby added to read as
follows:
By April 1st of each year beginning April 1, 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 E 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 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 Servicer of
that fact, and (ii) the Servicer shall not be required to provide
the Officer's Certificate described in this Section 12.14.
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EXHIBIT B
(See Exhibit 99.6)
B-1
Exhibit C
[INTENTIONALLY OMITTED]
C-1
EXHIBIT D
[INTENTIONALLY OMITTED]
D-1
EXHIBIT E
ANNUAL CERTIFICATION
Structured Asset Securities Corporation
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Aurora Loan Services LLC
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Mail Stop Code - 3195
Re: Structured Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2005-11
Reference is made to the Reconstituted Servicing Agreement, dated as of April 1,
2005 (the "Agreement"), by and among Xxxxxx Brothers Holdings Inc., as seller
and IndyMac Bank, F.S.B., as servicer (the "Servicer"). I, [identify the
certifying individual], a [title] of the Servicer hereby certify to Aurora Loan
Services LLC (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.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of
the Servicer.
Dated: By:
--------------------------- -----------------------------------
Name:
---------------------------------
Title:
-------------------------------
E-1
