EX 99.9
EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of September, 2004, by and between XXXXXX BROTHERS HOLDINGS
INC., a Delaware corporation (the "Seller" or "Xxxxxx Brothers Holdings"), and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association (the
"Servicer"), and acknowledged by AURORA LOAN SERVICES INC., a Delaware
corporation ("Aurora"), and HSBC BANK USA, NATIONAL ASSOCIATION, a national
banking association (the "Trustee"), recites and provides as follows:
RECITALS
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Bank") acquired certain fixed
rate, conventional, residential mortgage loans from the Servicer pursuant to the
Seller's Warranties and Servicing Agreement by and between the Bank and the
Servicer, dated as of July 1, 2004 (the "Purchase Agreement").
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated
September 1, 2004 (the "Assignment and Assumption Agreement") annexed as Exhibit
B hereto, the Seller acquired from the Bank all of the Bank's right, title and
interest in and to the mortgage loans under the Purchase Agreement 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 Purchase Agreement.
WHEREAS, the Serviced Mortgage Loans are currently being serviced by
the Servicer pursuant to the Seller's Warranties and Servicing Agreement by and
between the Bank and the Servicer, dated as of July 1, 2004 (WFHM 2004-W41) (the
"SWSA") and attached hereto as Exhibit C.
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 September 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 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, except to the extent otherwise
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 if 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 Xxxxx Fargo Bank,
National Association will act as custodian of the Servicing Files for the
Trustee pursuant to a Custodial Agreement, dated September 1, 2004, between
Xxxxx Fargo 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 October 18, 2004
to the Trust Fund is to include principal due after September 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 2004-14 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 content 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 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 3.01 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 2004-14
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 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 2004-14
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Issuer Services, SARM 2004-14
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 PAGE IMMEDIATELY FOLLOWS]
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Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By: ___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Authorized Signatory
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Servicer
By: ___________________________________
Name: Xxxxxx Xxxx
Title: Vice President
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. A new definition of "Prepayment Charge" is added to Article I
immediately following the definition of "PMI Policy" to read as
follows:
Prepayment Charge: Any prepayment or yield maintenance fees,
penalties or charges to be paid by the Mortgagor in connection
with a Principal Prepayment on a Mortgage Loan.
4. A new definition of "Prepayment Interest Shortfall Amount" is added to
Article I immediately following the definition of "Prepayment Charge"
to read as follows:
Prepayment Interest Shortfall Amount: With respect to any
Mortgage Loan that was subject to a Principal Prepayment in
full or in part during any Due Period, which Principal
Prepayment was applied to such Mortgage Loan prior to such
Mortgage Loan's Due Date in such Due Period, the amount of
interest (net of the related Servicing Fee for Principal
Prepayments in full only) that would have accrued on the
amount of such Principal Prepayment during the period
commencing on the date as of which such Principal Prepayment
was applied to such Mortgage Loan and ending on the day
immediately preceding such Due Date, inclusive.
5. A new definition of "Realized Loss" is added to Article I immediately
following the definition of "Rating Agencies" 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.
6. The parties acknowledge that the fourth paragraph of Section 2.02
(Books and Records; Transfers of Mortgage Loans) shall be inapplicable
to this Agreement.
7. The parties acknowledge that Section 2.03 (Custodial Agreement;
Delivery of Documents) shall be superceded by the provisions of the
Custodial Agreement.
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8. 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".
9. Section 3.01(f) (Ability to Perform) is hereby amended by deleting the
second and third sentences thereof.
10. Section 3.01(h) (No Consent Required) is hereby amended by deleting the
words "or the sale of the Mortgage Loans".
11. Section 3.01 (i) (Selection Process), Section 3.01(k) (Sale Treatment),
Section 3.01(m) (No Brokers' Fees) and Section 3.01(n) (Fair
Consideration) shall be inapplicable to this Agreement.
12. Four new paragraphs are hereby added at the end of Section 3.03
(Repurchase) to read as follows:
It is understood and agreed that the representations
and warranties set forth in Section 3.01 (a) through (h), (j)
and (l) 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.
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
Trustee's option, assign the Company's rights and obligations
under this Agreement (or respecting the affected Loans) to a
successor servicer selected by the Trustee with the prior
consent and approval of the Master Servicer. 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.
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13. 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 judgement 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. 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.
14. Section 4.04 (Establishment of and Deposits to Custodial Account) is
hereby amended as follows:
(a) the words "in trust for the Purchaser and/or
subsequent purchasers of Mortgage Loans, and various
Mortgagors-P&I" in the fourth and fifth lines of the
first sentence of the first paragraph shall be
replaced by the following: "in trust for SARM 2004-14
Trust Fund and various Mortgagors".
(b) by amending clause (viii) to read as follows:
(viii) the amount of any Prepayment Interest
Shortfall Amount paid out of the Company's
own funds without any right to reimbursement
therefor;
15. Section 4.05 (Permitted Withdrawals From Custodial Account) is hereby
amended by replacing the last five lines of 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;
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16. Section 4.06 (Establishment of and Deposits to Escrow Account) shall be
amended by deleting the words "Purchaser and/or subsequent purchasers
of Mortgage Loans, and various Mortgagors-T&I" in the fourth and fifth
lines of the first sentence of the first paragraph, and replacing it
with the following:
"in trust for SARM 2004-14 Trust Fund and various Mortgagors".
17. 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 second paragraph thereof with "three years", (ii)
replacing the word "sentence" with "paragraph" in the second sentence
of the third paragraph thereto, (iv) 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 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.
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(iv) deleting the first sentence of the fifth paragraph thereto, (v)
replacing the word "advances" in the sixth line of the fifth paragraph
thereof with "Monthly Advances" and (vi) 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.
18. A new Section 4.23 is hereby added to read as follows:
Section 4.23 Waiver of Prepayment Charges.
The Servicer or any designee of the Servicer shall not waive any
Prepayment Charge with respect to any Mortgage Loan. If the Servicer or its
designee fails to collect a Prepayment Charge at the time of the related
prepayment of any Mortgage Loan subject to such Prepayment Charge, the Servicer
shall pay to the Purchaser at such time (by deposit to the Custodial Account) an
amount equal to the amount of the Prepayment Charge not collected.
Notwithstanding the above, the Servicer or its designee may waive a Prepayment
Charge without paying to the Purchaser the amount of such Prepayment Charge only
if the related prepayment is not the result of a refinancing by the Servicer or
its designee and such waiver (i) relates to a defaulted Mortgage Loan or a
reasonably foreseeable default, such waiver is standard and customary in
servicing similar mortgage loans to the Mortgage Loans, and such waiver, in the
reasonable judgment of the Servicer, would maximize recovery of total proceeds
from the Mortgage Loan, taking into account the amount of such Prepayment Charge
and the related Mortgage Loan, or (ii) relates to a Prepayment Charge the
collection of which, in the reasonable judgment of the Servicer, would be a
violation of applicable laws.
19. 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 2004-14
20. 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 the
format set forth in Exhibits E-1 and E-2 hereto (or in such
other format mutually agreed to between the Company and the
Master Servicer). The information required by Exhibit E-2 is
limited to that which is readily available to the Company and
is mutually agreed to by the Company and Master Servicer.
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21. Section 5.03 (Monthly Advances by Company) is hereby amended by
deleting the last sentence of such Section.
22. Section 6.04 (Annual Statement as to Compliance) is hereby amended by
replacing the words "the Purchaser" in the first line with the words
"Xxxxxx Brothers Holdings Inc. and the Master Servicer".
23. Section 6.05 (Annual Independent Public Accountants' Servicing Report)
is hereby amended by replacing the words "each Purchaser" in the third
line with the words "Xxxxxx Brothers Holdings Inc. and the Master
Servicer."
24. Section 8.01 (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, judgements, 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 (including, but not limited to its
obligation to provide the certification pursuant to Section
12.13 hereunder) or for any inaccurate or misleading
information provided in the certification required pursuant to
Section 12.13. 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 judgement 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 8.01, 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 the Company.
25. Section 10.01 (Events of Default) is hereby amended by:
(a) changing any reference to "Purchaser" to "Master Servicer"
(b) changing the reference to "five days" to "two Business
Days" in clause (i); and
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(c) 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".
26. Section 10.02 (Waiver of Defaults) is hereby amended by changing the
reference to "Purchaser" to "Master Servicer with the prior written
consent of the Trustee."
27. 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 Section 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.
28. Section 11.02 (Termination Without Cause) is hereby amended by
replacing the first reference to "Purchaser" with "Xxxxxx Brothers
Holdings (with the prior consent of the Trustee)" and by replacing all
other references to "Purchaser" with "Xxxxxx Brothers Holdings."
29. 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.
A-7
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
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.
A-8
30. 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.
31. Section 12.04 (Duration of Agreement) is hereby amended by deleting the
last sentence thereof.
32. Section 12.10 (Assignment by Purchaser) is hereby deleted in its
entirety.
33. A new Section 12.12 (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.
34. A new Section 12.13 (Officer's Certificate) is hereby added to read as
follows:
(a) On or before the last day of February of each
year, beginning with February 28, 2005, or in connection with
any additional Xxxxxxxx-Xxxxx Certification required to be
filed, upon thirty days written request the Company, at its
own expense, will deliver to the Master Servicer a Servicing
Officer's Certificate, a form of which is attached hereto as
Exhibit F.
A-9
EXHIBIT B
Assignment and Assumption Agreement
[INTENTIONALLY OMITTED]
B-1
EXHIBIT C
SWSA
See Exhibit 99.16
C-1
EXHIBIT D
SERVICED MORTGAGE LOANS
[INTENTIONALLY OMITTED]
D-1
EXHIBIT E-1
FORM OF MONTHLY REMITTANCE ADVICE
FIELD NAME DESCRIPTION FORMAT
---------- ----------- ------
INVNUM INVESTOR LOAN NUMBER Number no decimals
SERVNUM SERVICER LOAN NUMBER, REQUIRED Number no decimals
BEGSCHEDBAL BEGINNING SCHEDULED BALANCE FOR SCHED/SCHED Number two decimals
BEGINNING TRAIL BALANCE FOR ACTUAL/ACTUAL,
REQUIRED
SCHEDPRIN SCHEDULED PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED Number two decimals
ACTUAL PRINCIPAL COLLECTED FOR ACTUAL/ACTUAL,
REQUIRED, .00 IF NO COLLECTIONS
CURT1 CURTAILMENT 1 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT1DATE CURTAILMENT 1 DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
CURT1ADJ CURTAILMENT 1 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
CURT2 CURTAILMENT 2 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT2DATE CURTAILMENT 2 DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
CURT2ADJ CURTAILMENT 2 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
LIQPRIN PAYOFF, LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
OTHPRIN OTHER PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
PRINREMIT TOTAL PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
INTREMIT NET INTEREST REMIT, INCLUDE PAYOFF INTEREST, Number two decimals
.00 IF NOT APPLICABLE
TOTREMIT TOTAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
ENDSCHEDBAL ENDING SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED Number two decimals
ENDING TRIAL BALANCE FOR ACTUAL/ACTUAL
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDACTBAL ENDING TRIAL BALANCE Number two decimals
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDDUEDATE ENDING ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT DD-MMM-YY
ACTCODE 60 IF PAIDOFF, BLANK IF NOT APPLICABLE Number no decimals
ACTDATE ACTUAL PAYOFF DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
INTRATE INTEREST RATE, REQUIRED Number seven decimals
Example .0700000 for 7.00%
Example .0025000 for .25%
SFRATE SERVICE FEE RATE, REQUIRED Number seven decimals
Example .0025000 for .25%
PTRATE PASS THRU RATE, REQUIRED Number seven decimals
Example .0675000 for 6.75%
PIPMT P&I CONSTANT, REQUIRED Number two decimals
.00 IF PAIDOFF
E-1-1
EXHIBIT E-2
STANDARD LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
FIELD NAME DESCRIPTION
---------- -----------
% of MI Coverage % of MI Coverage
Actual MI Claim Filed Date The date the Claim to the MI Company was filed
Actual Bankruptcy Start Date (filing date) Actual Bankruptcy Start Date (filing date)
Actual Claim Amount Filed The amount claimed to the MI company on the MI claim
Actual Discharge Date Date Bankruptcy was Discharged
Actual Due Date Next Payment Due Date
Actual Eviction Complete Date Actual Eviction Complete Date
Actual Eviction Start Date Actual Eviction Start Date
Actual First Legal Date Actual First Legal Date
Actual Notice of Intent Date (breach letter date) Actual Notice of Intent Date (breach letter date)
Actual Payment Plan End Date The date the Last Pre-petition payment is due from the
Trustee in a chapter 13 BK
Actual Payment Plan Start Date The date the First Pre-petition payment is due from the
Trustee in a chapter 13 BK
Actual Redemption End Date Actual Redemption End Date
Actual REO Start Date The date the account was received by the REO Department
Appraisal, BPO Costs Total expenses incurred for the purpose of BPO's or
Appraisals.
Bankruptcy Chapter Bankruptcy Chapter 7,11,13
BK Atty Fees & Costs BK Atty Fees & Costs
BK Flag (Man Code) A code that identifies the account as an active
Bankruptcy.
Bnk Case # (7 digit only) Bnk Case # (7 digit only)
City City
Claim Amount Paid MI Claim Amount
Claim Funds Received Date The date the MI Claim funds were received from the MI Company
Confirmation Hearing Date Confirmation Hearing Date
Current Interest Rate Current Interest Rate
Current Loan Amount Unpaid Principal Balance
Current P&I Payment Amount Current P&I Payment Amount
Date Bid Instructions Sent Date Bid Instructions Sent to Attorney
Date F/C Sale Scheduled The date the Foreclosure sale is scheduled to occur.
Date Filed Relief/Dismissal The date the motion for Relief or Dismissal was
filed with the BK Court
Date Loan Reinstated Date Loan Reinstated
Date POC Filed Date proof of claim filed
Date Relief/Dismissal Granted The date the BK court granted the motion for Relief or
Dismissal
Date REO Offer Accepted Date REO Offer Accepted
Date REO Offer Received Date REO Offer Received
Deal Identifier by Loan Security Name/Cross reference Investor ID (Servicer to Cross
reference)
E-2-1
Delinquency Status (Man Code) 30, 60, 90, BK, FC, REO, Claims or a code that can be
decoded to determine the current status of the account.
Loss Mit Denial Date Loss Mit Denial Date
Eviction Atty Fees & Costs Eviction Atty Fees & Costs
F/B 1st Due (if applicable) F/B 1st Due (if applicable)
F/B Last Due (if applicable) F/B Last Due (if applicable)
FC Atty Fees & Costs FC Atty Fees & Costs
FC Flag A code that identifies the account as an active Foreclosure.
FC Start Date (referral date) FC Start Date (referral date)
FC Suspended Date FC Suspended Date
FC Valuation Amount The value of the property as determined for the
purpose of foreclosure.
FC Valuation Date The date the property value was determined for the purpose
of foreclosure.
FC Valuation Source The type of valuation that was used to determine
the Fc Valuation amount.
FHA 27011A Transmitted Date FHA 27011A Transmitted Date
FHA 27011B Transmitted Date FHA 27011B Transmitted Date
FHA Case # FHA Case #
FHA Part A Funds Received Date FHA Part A Funds Received Date
First Payment Date First Payment Date
Foreclosure Actual Sale Date Date F/C Sale Held
VA Guarantee % VA Guarantee %
Interest Advances Interest Advances
Investor Loan Number Investor Loan Number
INVESTOR/SECURITY BILLING SENT DATE Date claim submitted to investor
Liquidation Status Type of PIF, S/S, 3rd Party etc.
VA Loan Guarantee Certificate Number VA Loan Guarantee Certificate Number
Loan Number Servicer Loan Number
Loan Term Loan Term
Loan Type Loan Type
Loss Mit Approval Date Loss Mit Approval Date
Loss Mit Flag (Man Code) A code that identifies the account as an active Loss Mit
account.
Loss Mit Removal Date The date the Loss Mit Department determined that Loss Mit
Options were no longer a viable option.
Loss Mit Start Date Loss Mit Set-up Date
Loss Mit Type S/S, Forbearance, Repay, Mod, etc.
Loss Mit Workstation Status Completed, Removed, Active
MI Certificate Number MI Certificate Number
MI Cost Price percentage, lender paid only
MI Coverage Y/N MI Coverage Y/N
Monthly MIP Cost The monthly fee paid to HUD to maintain coverage on the
account.
Next Payment Adjustment Date Next Payment Adjustment Date
Next Rate Adjustment Date Next Rate Adjustment Date
E-2-2
Occupancy Status Occupancy Status
Occupancy Status Date The date the occupancy status reported was determined.
Original Loan Amount Original Loan Amount
Original Value Amount The value of the property as determined at the origination
of the account.
Origination Date The date the closing occurred to originate the loan.
ORIGINATION VALUE DATE The date the original Value Amount was determined.
ORIGINATION VALUE SOURCE The type of valuation that was used to determine the Original Value
amount.
Other Advance Expenses Total Advances minus all other/detail and total
Ownership Code
Paid in Full Date Date loan liquidated from system UPB removed
Paid Off Code
Part B Funds Received Date FHA/VA Only
Partial Prepayment Amount Collected
Post Petition Due Date
Prepayment Expiration Date Term
Prepayment Flag
Prepayment Premium Collected
Prepayment Waived
Product Type
Property Condition
PROPERTY PRESERVATION FEES
Property Type
Realized Gain or Loss
Reason for Default
Reason Suspended
Relief/Dismissal Hearing Date
REO Repaired Value
REO Value(As-is)
REO Actual Closing Date
REO Flag (Man Code)
REO List Date
REO List Price
REO Net Sales proceeds
REO Sales Price
REO Scheduled Close Date
REO Value Date
REO VALUE SOURCE
Repay First Due Date
Repay Last Due Date
Repay Next Due Date
Repay Plan Broken Date
Repay Plan Created Date
SBO LOAN NUMBER
Scheduled Balance
Scheduled Due Date
X-0-0
Xxxxxxxxx Xxx
Xxxxx
Xxxxxx Xxxxxxx
T&I Advances
Title Approval Letter Received Date
Title Package to HUD Date
Title Package to VA Date
VA Claim Funds Received Date
VA Claim Submitted Date
VA FIRST FUNDS RECEIVED AMOUNT
VA FIRST FUNDS RECEIVED DATE
VA XXX Submitted Date
ZIP CODE
FNMA ACTION CODE
FNMA DELINQUENCY REASON CODE
E-2-4
EXHIBIT F
ANNUAL CERTIFICATION
Re: Structured Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2004-14
--------------------------------------------------------------------
I, Xxxx X. Xxxxx, Vice President of Xxxxx Fargo Bank, National Association (the
"Servicer"), certify to [identify the company submitting to SEC], and its
officers, directors, agents and affiliates (in its role as [identify role] the
"Sarbanes Certifying Party"), and with the knowledge and intent that they will
rely upon this certification, that:
1. Based on my knowledge, the information relating to the Mortgage Loans and
the servicing thereof submitted by the Servicer to the Sarbanes Certifying
Party which is used in connection with preparation of the reports on Form
8-K and the annual report on Form 10-K filed with the SEC with respect to
each transaction listed on the attached Exhibit A, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the date of this certification;
2. The servicing information required to be provided to the Sarbanes
Certifying Party by the Servicer under the relevant servicing agreements
has been provided to the Sarbanes Certifying Party;
3. I am responsible for reviewing the activities performed by the Servicer
under the relevant servicing agreements and based upon the review required
by the relevant servicing agreements, and except as disclosed in the Annual
Statement of Compliance, the Annual Independent Public Accountant's
Servicing Report and all servicing reports, officer's certificates and
other information relating to the servicing of the Mortgage Loans submitted
to the Sarbanes Certifying Party, the Servicer has, as of the date of this
certification fulfilled its obligations under the relevant servicing
agreements; and
4. I have disclosed to the Sarbanes Certifying Party all significant
deficiencies relating to the Servicer's compliance with the minimum
servicing standards in accordance with a review conducted in compliance
with the Uniform Single Attestation Program for Mortgage Bankers or similar
standard as set forth in the relevant servicing agreements.
5. The Servicer shall indemnify and hold harmless the Sarbanes Certifying
Party and its officers, directors, agents and affiliates from and against
any losses, damages, penalties, fines, forfeitures, reasonable legal fees
and related costs, judgments and other costs and expenses arising out of or
based upon a breach by the Servicer or any of its officers, directors,
agents or affiliates of its obligations under this Certification or the
negligence, bad faith or willful misconduct of the Servicer in connection
therewith. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Sarbanes Certifying Party, then the
Servicer agrees that it shall contribute to the amount paid or payable by
the Sarbanes Certifying Party as a result of the losses, claims, damages or
liabilities of the Sarbanes Certifying Party in such proportion as is
appropriate to reflect the relative fault of the Sarbanes Certifying Party
on the one hand and the Servicer on the other in connection with a breach
of the Servicer's obligations under this Certification or the Servicer's
negligence, bad faith or willful misconduct in connection therewith.
F-1
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal
of the Servicer.
Dated: By:
---------------------------- --------------------------------
Name:
-------------------------------
Title:
-----------------------------
F-2
