Exhibit 99.6
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of August, 2004, by and between XXXXXX BROTHERS HOLDINGS INC.,
a Delaware corporation (the "Seller" or "Xxxxxx Brothers Holdings"), INDYMAC
BANK, F.S.B., a Federal Savings Bank (the "Servicer"), and acknowledged by
AURORA LOAN SERVICES INC., a Delaware corporation ("Aurora"), and HSBC Bank USA,
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
August 1, 2004 (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 HSBC Bank USA, National Association, as
trustee (the "Trustee"), pursuant to a trust agreement, dated as of August 1,
2004 (the "Trust Agreement"), among the Trustee, Aurora Loan Services Inc., as
master servicer ("Aurora," and, together with any successor master servicer
appointed pursuant to the provisions of the Trust Agreement, the "Master
Servicer"), Xxxxx Fargo Bank, National Association, as securities administrator,
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.
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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 August 1, 2004, 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 September 18,
2004 to the Trust Fund is to include principal due after August 1, 2004 (the
"Trust Cut-off Date") plus interest, at the Mortgage Loan Remittance Rate
collected during the related Due Period exclusive of any portion thereof
allocable to a period prior to the Trust Cut-off Date, with the adjustments
specified in 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 2004-12 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.
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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, Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: E. Xxxx Xxxxxxxxxx, Master Servicing,
SARM 2004-12
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled basis to the following wire
account:
JPMorgan Chase Bank
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc.,
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services, Inc.
For further credit to: SARM 2004-12
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxx, XXXX 0000-00
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.
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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]
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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
INDYMAC BANK, F.S.B.,
as Servicer
By:_______________________________
Name:
Title:
Acknowledged:
AURORA LOAN SERVICES, INC.,
as Master Servicer
By:_________________________________
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
HSBC BANK USA, NATIONAL ASSOCIATION
as Trustee
By:_________________________________
Name:
Title:
EXHIBIT A
Modifications to the SWSA
1. 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.
2. 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.
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5. The definition of "Mortgage Loan" is hereby amended and restated in its
entirety to read as follows:
Mortgage Loan: An individual servicing retained Mortgage Loan
which has been purchased from the Servicer by Xxxxxx Brothers
Bank, FSB and is subject to this Agreement being identified on
the Mortgage Loan Schedule to this Agreement, which Mortgage
Loan includes without limitation the Mortgage Loan documents,
the monthly reports, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds and all other rights, benefits, proceeds
and obligations arising from or in connection with such
Mortgage Loan.
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 interest rate provided under such contract to
the date of delivery of such funds to the Trustee;
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(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 of the Trustee or the Trust
Fund, the party discovering such breach shall give prompt
written notice to the other.
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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.
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(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. 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 2004-12 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 2004-12 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
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"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 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 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 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
New York, New York
ABA #: 000-000-000
Account Name: Aurora Loan Services Inc.
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: Aurora Loan Services 2004-12
A-7
23. Section 5.02 (Statements to Purchaser) is hereby amended in its
entirety to read as follows:
Section 5.02 Statements to Master Servicer.
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 "March 1, 2005."
26. Section 6.05 (Annual Independent Public Accountants' Servicing Report)
is hereby amended by replacing "March 31, 2004" with "March 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
A-8
by reason of willful misfeasance, bad faith or negligence in
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.
A-9
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:
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.
A-10
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
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.
A-11
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 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 March 1st of each year beginning March 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
Servicing Agreement
[See Exhibit 99.13]
B-1
Exhibit C
Assignment and Assumption Agreement
[INTENTIONALLY OMITTED]
C-1
EXHIBIT D
Schedule of Serviced Mortgage Loans
[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, Inc.
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000X
Xxxxxx, Xxxxxxxx 00000
Re: Structured Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2004-12
--------------------------------------------------------------------
Reference is made to the Reconstituted Servicing Agreement, dated as of August
1, 2004 (the "Agreement"), by and among Xxxxxx Brothers Holdings Inc., as seller
and 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, Inc. (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
