Execution
================================================================================
AURORA LOAN SERVICES INC.,
as Servicer
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
and
AURORA LOAN SERVICES INC.
as Master Servicer
_____________________________
Structured Adjustable Rate Mortgage Loan Trust
Mortgage Pass-Through Certificates, Series 2004-7
SERVICING AGREEMENT
Dated as of May 1, 2004
_____________________________
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINITIONS...........................................................................................3
ARTICLE II. SELLER'S ENGAGEMENT OF SERVICER TO PERFORM SERVICING RESPONSIBILITIES...............................13
Section 2.01 Contract for Servicing; Possession of Servicing Files.....................................13
Section 2.02 Books and Records.........................................................................13
ARTICLE III. SERVICING OF THE MORTGAGE LOANS....................................................................14
Section 3.01 Servicer to Service.......................................................................14
Section 3.02 Collection of Mortgage Loan Payments......................................................16
Section 3.03 Establishment of and Deposits to Custodial Account........................................16
Section 3.04 Permitted Withdrawals From Custodial Account..............................................18
Section 3.05 Establishment of and Deposits to Escrow Account...........................................19
Section 3.06 Permitted Withdrawals From Escrow Account.................................................20
Section 3.07 Maintenance of PMI Policy and/or LPMI Policy; Claims......................................20
Section 3.08 Fidelity Bond and Errors and Omissions Insurance..........................................22
Section 3.09 Notification of Adjustments...............................................................22
Section 3.10 Completion and Recordation of Assignments of Mortgage.....................................22
Section 3.11 Protection of Accounts....................................................................22
Section 3.12 Payment of Taxes, Insurance and Other Charges.............................................23
Section 3.13 Maintenance of Hazard Insurance...........................................................23
Section 3.14 Maintenance of Mortgage Blanket Insurance.................................................24
Section 3.15 Restoration of Mortgaged Property.........................................................24
Section 3.16 Title, Management and Disposition of REO Property.........................................25
Section 3.17 Real Estate Owned Reports.................................................................27
Section 3.18 MERS......................................................................................27
Section 3.19 Waiver of Prepayment Penalty Amounts......................................................28
ARTICLE IV. PAYMENTS TO MASTER SERVICER.........................................................................28
Section 4.01 Remittances...............................................................................28
Section 4.02 Statements to Master Servicer.............................................................29
Section 4.03 Monthly Advances by Servicer..............................................................30
ARTICLE V. GENERAL SERVICING PROCEDURES.........................................................................31
Section 5.01 Servicing Compensation....................................................................31
Section 5.02 Annual Audit Report.......................................................................31
Section 5.03 Annual Officer's Certificate..............................................................32
Section 5.04 Transfers of Mortgaged Property...........................................................32
ARTICLE VI. REPRESENTATIONS, WARRANTIES AND AGREEMENTS..........................................................33
-ii-
Section 6.01 Representations, Warranties and Agreements of the Servicer................................33
Section 6.02 Remedies for Breach of Representations and Warranties of the Servicer.....................35
Section 6.03 Additional Indemnification by the Servicer; Third Party Claims............................35
Section 6.04 Indemnification with Respect to Certain Taxes and Loss of REMIC Status....................36
ARTICLE VII. THE SERVICER.......................................................................................37
Section 7.01 Merger or Consolidation of the Servicer...................................................37
Section 7.02 Limitation on Liability of the Servicer and Others........................................37
Section 7.03 Limitation on Resignation and Assignment by the Servicer..................................37
Section 7.04 Subservicing Agreements and Successor Subservicer.........................................38
Section 7.05 Inspection................................................................................39
ARTICLE VIII. TERMINATION.......................................................................................40
Section 8.01 Termination for Cause.....................................................................40
Section 8.02 Termination Without Cause.................................................................41
ARTICLE IX. MISCELLANEOUS PROVISIONS............................................................................42
Section 9.01 Successor to the Servicer.................................................................42
Section 9.02 Costs.....................................................................................44
Section 9.03 Notices...................................................................................44
Section 9.04 Severability Clause.......................................................................46
Section 9.05 No Personal Solicitation..................................................................46
Section 9.06 Counterparts..............................................................................46
Section 9.07 Place of Delivery and Governing Law.......................................................47
Section 9.08 Further Agreements........................................................................47
Section 9.09 Intention of the Parties..................................................................47
Section 9.10 Successors and Assigns; Assignment of Servicing Agreement.................................47
Section 9.11 Assignment by the Seller..................................................................47
Section 9.12 Amendment.................................................................................48
Section 9.13 Waivers...................................................................................48
Section 9.14 Exhibits..................................................................................48
Section 9.15 Intended Third Party Beneficiaries........................................................48
Section 9.16 General Interpretive Principles...........................................................49
Section 9.17 Reproduction of Documents.................................................................49
Section 9.18 Protection of Confidential Information....................................................49
-iii-
EXHIBITS & SCHEDULES
EXHIBIT A Mortgage Loan Schedule
EXHIBIT B Custodial Account Certification Notice
EXHIBIT C Escrow Account Certification Notice
EXHIBIT D-1 Master Servicer Data Field Requirements (Standard Layout)
EXHIBIT D-2 Master Servicer Default File Format
EXHIBIT E Form of Certification to be Provided to the Depositor, the Trustee
And the Master Servicer by the Servicer
EXHIBIT F Assignment and Assumption Agreement
-iv-
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement"), entered into as of the 1st
day of May, 2004, by and between XXXXXX BROTHERS HOLDINGS INC., a Delaware
corporation (the "Seller"), AURORA LOAN SERVICES INC., a Delaware corporation
(the "Servicer"), and AURORA LOAN SERVICES INC., as Master Servicer under the
Trust Agreement (as defined herein) recites and provides as follows:
RECITALS
WHEREAS, the Servicer and Xxxxxx Brothers Bank, FSB (the "Bank") are
parties to a Flow Servicing Agreement, dated as of August 31, 1999 (the "Bank
Flow Servicing Agreement"), pursuant to which the Servicer services certain of
the residential adjustable rate mortgage loans identified on Exhibit A hereto
(the "Bank Mortgage Loans");
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated
August 1, 2003 (the "Assignment Agreement"), 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 Bank Flow Servicing Agreement and assumed for the
benefit of the Servicer and the Bank the rights and obligations of the Bank as
owner of such mortgage loans pursuant to the Bank Flow Servicing Agreement;
WHEREAS, the Servicer and the Seller are parties to a Flow Servicing
Agreement, dated as of February 15, 2000 (the "Holdings Flow Servicing
Agreement"), pursuant to which the Servicer services certain of the mortgage
loans identified on Exhibit A hereto (the "Holdings Mortgage Loans," and
together with the Bank Mortgage Loans, the "Mortgage Loans");
WHEREAS, the Seller has conveyed such Mortgage Loans on a
servicing-retained basis to Structured Asset Securities Corporation (the
"Depositor"), which in turn has conveyed the Mortgage Loans to Xxxxx Fargo Bank,
National Association, as trustee (the "Trustee"), under a trust agreement dated
as of May 1, 2004 (the "Trust Agreement"), among the Trustee, Aurora Loan
Services Inc., as master servicer (together with any successor Master Servicer
appointed pursuant to the provisions of the Trust Agreement, the "Master
Servicer") and the Depositor;
WHEREAS, from time to time certain other of the mortgage loans conveyed
by the Depositor to the Trustee under the Trust Agreement on the Closing Date
and serviced by other servicers may subsequent to the Closing Date be
transferred to the Servicer for servicing under this Agreement and Exhibit A
hereto will be amended to include such mortgage loans which will then be
"Mortgage Loans" under this Agreement;
WHEREAS, the Seller desires that the Servicer service the Mortgage
Loans pursuant to this Agreement, and the Servicer has agreed to do so, subject
to the right of the Seller and of the Master Servicer to terminate the rights
and obligations of the Servicer hereunder at any time and to the other
conditions set forth herein;
WHEREAS, the Seller and the Servicer agree that the provisions of the
Bank Flow Servicing Agreement and Holdings Flow Servicing Agreement shall not
apply to such related Mortgage Loans for so long as such related Mortgage Loans
remain subject to the provisions of the Trust Agreement;
WHEREAS, the Master Servicer shall be obligated under the Trust
Agreement, among other things, to supervise the servicing of the 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 Servicing
Agreement;
WHEREAS, the Seller and the Servicer agree that the provisions of the
Bank Flow Servicing Agreement and the Holdings Flow Servicing Agreement shall
not apply to the related Mortgage Loans for so long as such Mortgage Loans
remain subject to the provisions of the Trust Agreement;
WHEREAS, multiple classes of certificates (the "Certificates"),
including the Class P and the Class X Certificate, will be issued on the Closing
Date pursuant to the Trust Agreement and Xxxxxx Brothers Inc. or a nominee
thereof is expected to be the initial registered holder of the Class P and Class
X Certificates;
WHEREAS, subsequent to the Closing Date Xxxxxx Brothers Inc. intends to
convey all of its rights, title and interest in and to the Class P and the Class
X Certificates and all payments and all other proceeds received thereunder to an
owner trust or other special purpose entity in which it will hold the sole
equity interest, and which trust or special purpose entity will issue net
interest margin securities ("NIM Securities") through an indenture trust, such
as NIM Securities secured, in part, by the payments on such Certificates (the
"NIMS Transaction");
WHEREAS, subsequent to the Closing Date, one or more insurers
(collectively, the "NIMS Insurer") may each issue one or more insurance policies
guaranteeing certain payments under the NIM Securities;
WHEREAS, in the event there may be two or more individual insurers it
is intended that the rights extended to the NIMS Insurer pursuant to this
Agreement be allocated among two or more individual insurers that issue
insurance policies in connection with the NIMS Transaction through an insurance
agreement by and among such insurers and the parties to the NIMS Transaction;
WHEREAS, the Seller and the Servicer acknowledge and agree that the
Seller will assign all of its rights and delegate all of its obligations
hereunder (excluding the Seller's rights and obligations as owner of the
servicing rights relating to the Mortgage Loans) to the Trustee, and that each
reference herein to the Seller is intended, unless otherwise specified, to mean
the Seller or the Trustee, as assignee, whichever is the owner of the Mortgage
Loans from time to time;
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, the Servicer and the
Master Servicer hereby agree as follows:
-2-
ARTICLE I.
DEFINITIONS
The following terms are defined as follows (except as otherwise agreed
in writing by the parties):
Accepted Servicing Practices: With respect to any Mortgage Loan, those
mortgage servicing practices of prudent mortgage lending institutions that
service mortgage loans of the same type as the Mortgage Loans in the
jurisdiction where the related Mortgaged Property is located.
Adjustable Rate Mortgage Loan: A Mortgage Loan serviced pursuant to
this Agreement under which the Mortgage Interest Rate is adjusted from time to
time in accordance with the terms and provisions of the related Mortgage Note.
Aggregate Loan Balance: At any date of determination, the outstanding
principal balance of the Mortgage Loans serviced hereunder.
Agreement: This Servicing Agreement and all amendments hereof and
supplements hereto.
Ancillary Income: All income derived from the Mortgage Loans, other
than Servicing Fees, including but not limited to late charges, fees received
with respect to checks or bank drafts returned by the related bank for
non-sufficient funds, assumption fees, optional insurance administrative fees
and all other incidental fees and charges. Ancillary Income shall not include
any Prepayment Penalty Amount.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the transfer of the Mortgage to the party indicated therein, which assignment,
notice of transfer or equivalent instrument may be in the form of one or more
blanket assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction, if permitted by law.
Bank: Xxxxxx Brothers Bank, FSB or any successor thereto.
Best Efforts: Efforts determined to be reasonably diligent by the
Seller or the Servicer, as the case may be, in its sole discretion. Such efforts
do not require the Seller or the Servicer, as the case may be, to enter into any
litigation, arbitration or other legal or quasi-legal proceeding, nor do they
require the Seller or the Servicer, as the case may be, to advance or expend
fees or sums of money in addition to those specifically set forth in this
Agreement.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in Colorado, Minnesota, Nebraska, New York or
the state in which the corporate trust office of the Trustee is located are
authorized or obliged by executive order to be closed.
-3-
Certificates: Any or all of the Certificates issued pursuant to the
Trust Agreement.
Closing Date: May 30, 2004.
Code: The Internal Revenue Code of 1986, as it may be amended from time
to time or any successor statute thereto, and applicable U.S. Department of the
Treasury regulations issued pursuant thereto.
Condemnation Proceeds: All awards of settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan documents.
Costs: For any Person, any claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses of such Person.
Custodial Account: The separate account or accounts created and
maintained pursuant to Section 3.03.
Custodial Agreement: The custodial agreements relating to custody of
certain of the Mortgage Loans, between each Custodian and the Trustee, dated May
1, 2004.
Custodians: LaSalle Bank National Association and U.S. Bank, National
Association and their respective successors.
Cut-off Date: May 1, 2004.
Depositor: Structured Asset Securities Corporation, or any successor in
interest.
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 next succeeding Business Day.
Due Date: The day of the month on which the Monthly Payment is due on a
Mortgage Loan, exclusive of any days of grace. With respect to the Mortgage
Loans for which payment from the Mortgagor is due on a day other than the first
day of the month, such Mortgage Loans will be treated as if the Monthly Payment
is due on the first day of the immediately succeeding month.
Due Period: With respect to each Remittance Date, the period commencing
on the second day of the month immediately preceding the month of the Remittance
Date and ending on the first day of the month of the Remittance Date.
Eligible Deposit Account: An account that is maintained with a federal
or state-chartered depository institution or trust company that complies with
the definition of Eligible Institution.
-4-
Eligible Institution: Any of the following:
(i) an institution whose:
(A) commercial paper, short-term debt obligations, or
other short-term deposits are rated at least "A-1+" or long-term
unsecured debt obligations are rated at least "AA-" by S&P, if the
amounts on deposit are to be held in the account for no more than 365
days; or
(B) commercial paper, short-term debt obligations,
demand deposits, or other short-term deposits are rated at least "A-2"
by S&P, if the amounts on deposit are to be held in the account for no
more than 30 days and are not intended to be used as credit
enhancement. Upon the loss of the required rating set forth in this
clause (ii), the accounts shall be transferred immediately to accounts
which have the required rating. Furthermore, commingling by the
Servicer is acceptable at the A-2 rating level if the Servicer is a
bank, thrift or depository and provided the Servicer has the capability
to immediately segregate funds and commence remittance to an Eligible
Deposit Account upon a downgrade;
(ii) the corporate trust department of a federal depository
institution or state-chartered depository institution subject to regulations
regarding fiduciary funds on deposit similar to Title 12 of the U.S. Code of
Federal Regulation Section 9.10(b), which, in either case, has corporate trust
powers and is acting in its fiduciary capacity; or
(iii) the Bank.
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, the Securities Administrator or the Trustee or any agent of the
Trustee or the Securities Administrator, 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;
-5-
(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;
(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 Loan Balance and the aggregate principal amount of all Eligible
Investments in the Certificate Account; 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 is
acceptable to the NIMS Insurer and would not adversely affect the then current
rating by any Rating Agency then rating the Certificates or the NIM Securities.
Such investments in this subsection (viii) may include money market mutual funds
or common trust funds, including any fund for which the Trustee, the Securities
Administrator, 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.
-6-
Errors and Omissions Insurance: Errors and Omissions Insurance to be
maintained by the Servicer in accordance with the Xxxxxx Xxx Guides.
Escrow Account: The separate account or accounts created and maintained
pursuant to Section 3.05.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other related
document.
Event of Default: Any event set forth in Section 8.01.
Xxxxxx Mae: Xxxxxx Xxx, or any successor thereto.
Xxxxxx Mae Guides: The Xxxxxx Xxx Selling Guide and the Xxxxxx Mae
Servicing Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Fidelity Bond: A fidelity bond to be maintained by the Servicer in
accordance with the Xxxxxx Xxx Guides.
Fitch: Fitch, Inc., or any successor in interest.
Xxxxxxx Mac: Xxxxxxx Mac, or any successor thereto.
Xxxxxx Mae: The Government National Mortgage Association, or any
successor thereto.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property
including proceeds of any hazard or flood insurance policy, PMI Policy or LPMI
Policy.
Liquidation Proceeds: Cash received in connection with the liquidation
of a defaulted Mortgage Loan, whether through the sale or assignment of such
Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the sale of the
related REO Property, if the Mortgaged Property is acquired in satisfaction of
the Mortgage Loan.
LPMI Fee: With respect to each LPMI Loan, the portion of the Mortgage
Interest Rate as set forth on the related Mortgage Loan Schedule (which shall be
payable solely from the interest portion of Monthly Payments, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds), which, during such
period prior to the required cancellation of the LPMI Policy, shall be used to
pay the premium due on the related LPMI Policy.
-7-
LPMI Insurer: None.
LPMI Loan: A Mortgage Loan covered by an LPMI Policy, as set forth in
the Mortgage Loan Schedule or otherwise identified to the Servicer in writing.
LPMI Policy: A policy of primary mortgage guaranty insurance issued by
a LPMI Insurer pursuant to which the related premium is to be paid from payments
of interest made by the Mortgagor.
Master Servicer: Aurora Loan Services Inc., or any successor in
interest, or if any successor master servicer shall be appointed as provided in
the Trust Agreement, then such successor master servicer.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor in interest thereto.
MERS Eligible Mortgage Loan: Any Mortgage Loan that has been designated
by the Servicer as recordable in the name of MERS.
MERS Mortgage Loan: Any Mortgage Loan as to which the related Mortgage,
or an Assignment of Mortgage, has been or will be recorded in the name of MERS,
as agent for the holder from time to time of the Mortgage Note.
Monthly Advance: With respect to each Remittance Date and each Mortgage
Loan, an amount equal to the Monthly Payment (with the interest portion of such
Monthly Payment adjusted to the Mortgage Loan Remittance Rate) that was due on
the Mortgage Loan on the Due Date in the related Due Period, and that (i) was
delinquent at the close of business on the related Determination Date and (ii)
was not the subject of a previous Monthly Advance, but only to the extent that
such amount is expected, in the reasonable judgment of the Servicer, to be
recoverable from collections or other recoveries in respect of such Mortgage
Loan. To the extent that the Servicer determines that any such amount is not
recoverable from collections or other recoveries in respect of such Mortgage
Loan, such determination shall be evidenced by a certificate of a Servicing
Officer delivered to the Master Servicer and the NIMS Insurer setting forth such
determination and the procedures and considerations of the Servicer forming the
basis of such determination.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Moody's: Xxxxx'x Investors Service, Inc., or any successor in interest.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first or second lien on an unsubordinated estate
in fee simple in real property securing the Mortgage Note.
Mortgage Interest Rate: The annual rate of interest borne on a Mortgage
Note, after giving effect to any applicable Relief Act Reduction.
-8-
Mortgage Loan: An individual Mortgage Loan that is the subject of this
Agreement, each Mortgage Loan subject to this Agreement being identified on the
Mortgage Loan Schedule, which Mortgage Loan includes without limitation the
Mortgage Loan documents, the Monthly Payments, 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.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan, the
annual rate of interest remitted to the Master Servicer, which shall be equal to
the Mortgage Interest Rate minus the applicable Servicing Fee.
Mortgage Loan Schedule: A schedule of the Mortgage Loans setting forth
information with respect to such Mortgage Loans (including any MERS
identification number (if available) with respect to each MERS Mortgage Loan or
MERS Eligible Mortgage Loan and a Prepayment Penalty Schedule), attached hereto
as Exhibit A, which may be amended from time to time to include additional
mortgage loans which are transferred to the Servicer by a Prior Servicer in a
Servicing Transfer.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property securing repayment of the debt
evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
NIM Securities: As defined in the tenth Recital to this Agreement.
NIMS Insurer: As defined in the eleventh Recital to this Agreement.
NIMS Transaction: As defined in the tenth Recital to this Agreement.
Non-MERS Eligible Mortgage Loan: Any Mortgage Loan other than a MERS
Eligible Mortgage Loan.
Non-MERS Mortgage Loan: Any Mortgage Loan other than a MERS Mortgage
Loan.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Servicer, reasonably acceptable to the Seller, the Trustee, the
Master Servicer and the NIMS Insurer, but which must be independent outside
counsel with respect to any such opinion of counsel concerning (i) the
non-recordation of Mortgage Loans pursuant to Section 2.02 hereof and (ii)
federal income tax matters.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
-9-
PMI Policy: A policy of primary mortgage guaranty insurance issued by a
Qualified Insurer, as required by this Agreement with respect to certain
Mortgage Loans.
Prepayment Interest Excess Amount: With respect to any Principal
Prepayment in full which is applied to the related Mortgage Loan from the first
day of the month of any Remittance Date through the sixteenth day of the month
of such Remittance Date, all amounts paid in respect of interest on such
Principal Prepayment in full. A Prepayment Interest Excess Amount cannot result
from a Principal Prepayment in part, but only from a Principal Prepayment in
full.
Prepayment Interest Shortfall Amount: With respect to any Remittance
Date and any Principal Prepayment in full which is applied to the related
Mortgage Loan from the seventeenth day of the month immediately preceding the
month of such Remittance Date through the last day of the month immediately
preceding the month of such Remittance Date, the amount of interest (net the
related Servicing Fee) that would have accrued on the amount of such Principal
Prepayment in full from the date on which such Principal Prepayment was applied
to such Mortgage Loan until the last day of the month immediately preceding the
month of such Remittance Date, inclusive. With respect to any Remittance Date
and any Principal Prepayment in part (other than a Principal Prepayment in part
received on the first day of the month) which is applied to the related Mortgage
Loan during the related Prepayment Period, the amount of interest that would
have accrued on the amount of such Principal Prepayment in part from the date on
which such Principal Prepayment in part was applied to such Mortgage Loan until
the end of the Prepayment Period, inclusive.
Prepayment Penalty Amount: With respect to any Remittance Date, all
premiums or charges paid by the obligors under the Mortgage Notes due to
Principal Prepayments collected by the Servicer during the immediately preceding
Prepayment Period.
Prepayment Penalty Schedule: A data field in the Mortgage Loan Schedule
attached hereto as Exhibit A which sets forth the amount or method of
calculation of the Prepayment Penalty Amount and the term during which such
Prepayment Penalty Amount is imposed with respect to a Mortgage Loan.
Prepayment Period: With respect to any Remittance Date and a Principal
Prepayment in full, the period from the seventeenth day of the month immediately
preceding the month of such Remittance Date to the sixteenth day of the month of
such Remittance Date. With respect to any Remittance Date and any Principal
Prepayment in part, the calendar month immediately preceding the month of such
Remittance Date.
Prime Rate: The prime rate published from time to time, as published as
the average rate in The Wall Street Journal Northeast Edition.
Principal Prepayment: Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date and which
is not accompanied by an amount of interest representing scheduled interest due
on any date or dates in any month or months subsequent to the month of
prepayment.
Prior Servicer: Any prior servicer (other than the Servicer) of any of
the Mortgage Loans.
-10-
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:
(i) 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;
(ii) 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;
(iii) provide that the Trustee's interest therein shall be
transferable to any successor trustee hereunder; and
provide that the funds reinvested thereunder and accrued interest
thereon be returnable to the Custodial Account not later than the Business Day
prior to any Remittance Date.
Qualified Insurer: A mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by Xxxxxx Xxx or Xxxxxxx Mac.
Rating Agency: Each of Moody's and S&P or their successors. If such
agencies or their successors are no longer in existence, "Rating Agencies" shall
be such nationally recognized statistical rating agencies, or other comparable
person, designated by the Seller, notice of which designation shall be given to
the NIMS Insurer, the Master Servicer and the Servicer.
Relief Act Reduction: With respect to any Mortgage Loan as to which
there has been a reduction in the amount of the interest collectible thereon as
a result of the application of the Servicemembers Civil Relief Act, as amended,
any amount by which interest collectible on such Mortgage Loan for the Due Date
in the related Due Period is less than the interest accrued thereon for the
applicable one month period at the Mortgage Interest Rate without giving effect
to such reduction.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
Remittance Date: The 18th day (or if such 18th day is not a Business
Day, the first Business Day immediately following) of any month.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Disposition Proceeds: All amounts received with respect to an REO
Disposition pursuant to Section 3.16.
REO Property: A Mortgaged Property acquired by the Servicer on behalf
of the Trustee through foreclosure or by deed in lieu of foreclosure, pursuant
to Section 3.16.
-11-
Retained Interest: The meaning set forth in the Trust Agreement.
Retained Interest Holder: The meaning set forth in the Trust Agreement.
Securities Administrator: None.
Servicer: Aurora Loan Services Inc. or its successor in interest or
assigns or any successor to the Servicer under this Agreement as herein
provided.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) incurred in the performance by the Servicer of its servicing
obligations, including, but not limited to, the cost of (i) the preservation,
inspection, restoration and protection of the Mortgaged Property, (ii) any
enforcement or administrative or judicial proceedings, including foreclosures,
(iii) the management and liquidation of the Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage, (iv) taxes, assessments,
water rates, sewer rents and other charges which are or may become a lien upon
the Mortgaged Property, and PMI Policy premiums and fire and hazard insurance
coverage, (v) any losses sustained by the Servicer with respect to the
liquidation of the Mortgaged Property and (vi) compliance with the obligations
pursuant to the provisions of the Xxxxxx Xxx Guides.
Servicing Fee: An amount equal to (a) one-twelfth the product of (i) a
rate per annum equal to 0.250% and (ii) the outstanding principal balance of
such Mortgage Loan and (b) any Prepayment Interest Excess Amount. The obligation
of the Trustee to pay the Servicing Fee is limited to, and the Servicing Fee is
payable solely from the interest portion (including recoveries with respect to
interest from Liquidation Proceeds to the extent permitted by this Agreement) of
such Monthly Payment collected by the Servicer or as otherwise provided under
this Agreement.
Servicing File: The items pertaining to a particular Mortgage Loan
including, but not limited to, the computer files, data disks, books, records,
data tapes, notes, and all additional documents generated as a result of or
utilized in originating and/or servicing each Mortgage Loan, which are held in
trust for the Trustee by the Servicer.
Servicing Officer: Any officer of the Servicer involved in or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Servicer to the
Master Servicer or the Seller upon request, as such list may from time to time
be amended.
Servicing Transfer: Any transfer of the servicing by a Prior Servicer
of Mortgage Loans to the Servicer under this Agreement.
Servicing Transfer Date: The date on which a Servicing Transfer occurs.
S&P: Standard and Poor's, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor in interest.
Trust Agreement: The Trust Agreement dated as of May 1, 2004, among the
Trustee, the Master Servicer and the Depositor.
-12-
Trustee: Xxxxx Fargo Bank, National Association or any successor in
interest, or if any successor trustee or co-trustee shall be appointed as
provided in the Trust Agreement, then such successor trustee or such co-trustee,
as the case may be.
Trust Fund: The trust fund established by the Trust Agreement, the
assets of which consist of the Mortgage Loans and any related assets.
Any capitalized terms used and not defined in this Agreement shall have
the meanings ascribed to such terms in the Trust Agreement.
ARTICLE II.
SELLER'S ENGAGEMENT OF SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Servicing Files.
The Seller, by execution and delivery of this Agreement, does hereby
contract with the Servicer, subject to the terms of this Agreement, for the
servicing of the Mortgage Loans. On or before the Closing Date or Servicing
Transfer Date, as applicable, the Seller shall cause to be delivered the
Servicing Files with respect to the Mortgage Loans listed on the Mortgage Loan
Schedule to the Servicer. Each Servicing File delivered to a Servicer shall be
held in trust by such Servicer for the benefit of the Trustee; provided,
however, that the Servicer shall have no liability for any Servicing Files (or
portions thereof) not delivered by the Seller. The Servicer's possession of any
portion of the Mortgage Loan documents shall be at the will of the Trustee for
the sole purpose of facilitating servicing of the related Mortgage Loan pursuant
to this Agreement, and such retention and possession by the Servicer shall be in
a custodial capacity only. The ownership of each Mortgage Note, Mortgage, and
the contents of the Servicing File shall be vested in the Trustee and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of the Servicer shall immediately
vest in the Trustee and shall be retained and maintained, in trust, by the
Servicer at the will of the Trustee in such custodial capacity only. The portion
of each Servicing File retained by the Servicer pursuant to this Agreement shall
be segregated from the other books and records of the Servicer and shall be
appropriately marked to clearly reflect the ownership of the related Mortgage
Loan by the Trustee. The Servicer shall release from its custody the contents of
any Servicing File retained by it only in accordance with this Agreement.
Section 2.02 Books and Records.
(a) Subject to Section 3.01(a) hereof, as soon as practicable after the
Closing Date, the Servicing Transfer Date or the date on which a Qualifying
Substitute Mortgage Loan is delivered pursuant to Section 2.05 of the Trust
Agreement, as applicable (but in no event more than 90 days thereafter except to
the extent delays are caused by the applicable recording office), the Servicer,
at the expense of the Depositor, shall cause the Mortgage or Assignment of
Mortgage, as applicable, with respect to each MERS Eligible Mortgage Loan, to be
properly recorded in the name of MERS in the public recording office in the
applicable jurisdiction, or shall ascertain that such have previously been so
recorded and, with the cooperation of the Trustee, shall take such actions as
are necessary to cause the Trustee to be clearly identified as the owner of each
MERS Mortgage Loan and each MERS Eligible Mortgage Loan on the records of MERS
for purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS.
-13-
(b) Subject to Section 3.01(a) hereof, an Assignment of Mortgage in
favor of the Trustee shall be recorded as to each Non-MERS Mortgage Loan unless
instructions to the contrary are delivered to the Servicer, in writing, by the
Depositor. Subject to the preceding sentence, as soon as practicable after the
Closing Date or Servicing Transfer Date, as applicable (but in no event more
than 90 days thereafter except to the extent delays are caused by the applicable
recording office), the Servicer, at the expense of the Depositor, shall cause to
be properly recorded in each public recording office where such Non-MERS
Eligible Mortgage Loans are recorded each Assignment of Mortgage.
(c) Additionally, the Servicer shall prepare and execute, at the
direction of the Trustee, any note endorsements relating to any of the Non-MERS
Mortgage Loans.
(d) All rights arising out of the Mortgage Loans shall be vested in the
Trustee, subject to the Servicer's right to service and administer the Mortgage
Loans hereunder in accordance with the terms of this Agreement. All funds
received on or in connection with a Mortgage Loan, other than the Servicing Fee
and other compensation to which the Servicer is entitled as set forth herein,
including but not limited to any and all servicing compensation pursuant to
Section 5.01 below, shall be received and held by the Servicer in trust for the
benefit of the Trustee pursuant to the terms of this Agreement.
(e) Any out-of-pocket costs incurred by the Servicer pursuant to this
Section 2.02 and Section 3.01(a), including any recording or other fees in
connection with the Servicer's obtaining the necessary powers of attorney (and
which are specified herein to be an expense of the Seller), shall be reimbursed
to the Servicer by the Seller within five (5) Business Days of receipt by the
Seller of an invoice for reimbursement. The Trust Fund shall not reimburse the
Seller for any such reimbursement to the Servicer.
(f) The Master Servicer and the Trustee shall have the right to examine
the books, records and other information of the Servicer, with respect to or
concerning this Agreement or the Mortgage Loans, during business hours or at
such other times as may be reasonable under applicable circumstances, upon
reasonable advance written notice to the Servicer.
ARTICLE III.
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Servicer to Service.
The Servicer, as an independent contractor, shall service and
administer the Mortgage Loans from and after the Closing Date or Servicing
Transfer Date, as applicable, and shall have full power and authority, acting
alone, to do any and all things in connection with such servicing and
administration which the Servicer may deem necessary or desirable, consistent
with the terms of this Agreement and with Accepted Servicing Practices.
-14-
The Seller and the Servicer additionally agree as follows:
(a) The Servicer shall (i) record or cause to be recorded the Mortgage
or the Assignment of Mortgage, as applicable, with respect to all MERS Eligible
Mortgage Loans, in the name of MERS, or shall ascertain that such have
previously been so recorded; (ii) with the cooperation of the Trustee, take such
actions as are necessary to cause the Trustee to be clearly identified as the
owner of each MERS Mortgage Loan and each MERS Eligible Mortgage Loan on the
records of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS; (iii) prepare or cause to be prepared
all Assignments of Mortgage with respect to all Non-MERS Eligible Mortgage
Loans; (iv) record or cause to be recorded, subject to Section 2.02(b) hereof,
all Assignments of Mortgage with respect to Non-MERS Mortgage Loans in the name
of the Trustee; (v) pay the recording costs pursuant to Section 2.02 hereof;
and/or (vi) track such Mortgages and Assignments of Mortgage to ensure they have
been recorded. The Servicer shall be entitled to be paid by the Seller fees for
the preparation and recordation of the Mortgages and Assignments of Mortgage.
After the expenses of such recording costs pursuant to Section 2.02 hereof shall
have been paid by the Servicer, the Servicer shall submit to the Seller a
reasonably detailed invoice for reimbursement of recording costs and fees it
incurred hereunder.
(b) If applicable, the Servicer shall, in accordance with the relevant
provisions of the Xxxxxxxx-Xxxxxxxx National Affordable Housing Act of 1990, as
the same may be amended from time to time, and the regulations provided in
accordance with the Real Estate Settlement Procedures Act, provide notice to the
Mortgagor of each Mortgage Loan of the transfer of the servicing thereto to the
Servicer.
(c) The Servicer shall be responsible for the preparation of and costs
associated with notifications to Mortgagors of the assumption of servicing by
the Servicer.
Consistent with the terms of this Agreement and except as provided in
Section 3.19, the Servicer may waive any late payment charge, assumption fee or
other fee that may be collected in the ordinary course of servicing the Mortgage
Loans. The Servicer shall not make any future advances to any obligor under any
Mortgage Loan, and (unless the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of the Servicer, reasonably
foreseeable) the Servicer shall not permit any modification of any material term
of any Mortgage Loan, including any modification that would change the Mortgage
Interest Rate, defer or 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. In the event
of any such modification which permits the deferral of interest or principal
payments on any Mortgage Loan, the Servicer shall, on the Business Day
immediately preceding the Remittance Date in any month in which any such
principal or interest payment has been deferred, make a Monthly Advance in
accordance with Section 4.03, in an amount equal to the difference between (i)
such month's principal and one month's interest at the Mortgage Loan Remittance
Rate on the unpaid principal balance of such Mortgage Loan and (ii) the amount
paid by the Mortgagor. The Servicer shall be entitled to reimbursement for such
advances to the same extent as for all other advances made pursuant to Section
-15-
4.03. Without limiting the generality of the foregoing, the Servicer shall
continue, and is hereby authorized and empowered, to execute and deliver on
behalf of itself and the Trustee, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Properties. Upon the request of the Servicer, the Trustee shall
execute and deliver to the Servicer any powers of attorney and other documents,
furnished to it by the Servicer and reasonably satisfactory to the Trustee,
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties under this Agreement. Promptly after the execution of any
assumption, modification, consolidation or extension of any Mortgage Loan, the
Servicer shall forward to the Master Servicer copies of any documents evidencing
such assumption, modification, consolidation or extension. Notwithstanding
anything to the contrary contained in this Servicing Agreement, the Servicer
shall not make or permit any modification, waiver or amendment of any term of
any Mortgage Loan that would cause any REMIC created under the Trust Agreement
to fail to qualify as a REMIC or result in the imposition of any tax under
Section 860F(a) or Section 860G(d) of the Code.
Notwithstanding anything to the contrary in this Agreement, the
Servicer shall not (unless the Servicer determines, in its own discretion, that
there exists a situation of extreme hardship to the Mortgagor), waive any
premium or penalty in connection with a prepayment of principal of any Mortgage
Loan, and shall not consent to the modification of any Mortgage Note to the
extent that such modification relates to payment of a prepayment premium or
penalty.
In servicing and administering the Mortgage Loans, the Servicer shall
employ procedures (including collection procedures) and exercise the same care
that it customarily employs and exercises in servicing and administering
mortgage loans for its own account, giving due consideration to Accepted
Servicing Practices where such practices do not conflict with the requirements
of this Agreement, the Xxxxxx Xxx Guides, and the Master Servicer's and Seller's
reliance on the Servicer.
Section 3.02 Collection of Mortgage Loan Payments.
Continuously from the Closing Date or Servicing Transfer Date, as
applicable, until the date each Mortgage Loan ceases to be subject to this
Agreement, the Servicer shall proceed diligently to collect all payments due
under each of the Mortgage Loans when the same shall become due and payable and
shall take special care in ascertaining and estimating Escrow Payments and all
other charges that will become due and payable with respect to the Mortgage
Loans and each related Mortgaged Property, to the end that the installments
payable by the Mortgagors will be sufficient to pay such charges as and when
they become due and payable.
Section 3.03 Establishment of and Deposits to Custodial Account.
The Servicer shall segregate and hold all funds collected and received
pursuant to the Mortgage Loans separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts,
in the form of time deposit or demand accounts, titled as directed by the Master
Servicer. The Custodial Account shall be an Eligible Deposit Account established
with an Eligible Institution. Any funds deposited in the Custodial Account may
be invested in Eligible Investments subject to the provisions of Section 3.11
hereof. Funds deposited in the Custodial Account may be drawn on by the Servicer
in accordance with Section 3.04. The creation of any Custodial Account shall be
evidenced by a letter agreement in the form of Exhibit B. A copy of such
certification or letter agreement shall be furnished to the Master Servicer and
the NIMS Insurer and, upon request, to any subsequent owner of the Mortgage
Loans.
-16-
The Servicer shall deposit in the Custodial Account on a daily basis,
and retain therein, the following collections received by the Servicer and
payments made by the Servicer after the Cut-off Date (other than scheduled
payments of principal and interest due on or before the Cut-off Date or received
by the Servicer prior to the Cut-off Date but allocable to the period subsequent
thereto or Servicing Transfer Date), as applicable:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans adjusted
to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds (other than amounts applied to the
restoration or repair of the Mortgaged Property or immediately released to the
Mortgagor in accordance with Accepted Servicing Practices);
(v) all Condemnation Proceeds that are not applied to the restoration
or repair of the Mortgaged Property or released to the Mortgagor;
(vi) with respect to each Principal Prepayment in full or in part, the
Prepayment Interest Shortfall Amount, if any, for the month of distribution.
Such deposit shall be made from the Servicer's own funds, without reimbursement
therefor up to a maximum amount per month of the Servicing Fee actually received
for such month for the Mortgage Loans;
(vii) all Monthly Advances made by the Servicer pursuant to Section
4.03;
(viii) any amounts required to be deposited by the Servicer in
connection with the deductible clause in any blanket hazard insurance policy;
(ix) any amounts received with respect to or related to any REO
Property or REO Disposition Proceeds;
(x) any Prepayment Penalty Amount; and
(xi) any other amount required hereunder to be deposited by the
Servicer in the Custodial Account.
The foregoing requirements for deposit into the Custodial Account shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of the Servicing Fee and
Ancillary Income need not be deposited by the Servicer into the Custodial
Account.
-17-
Any interest paid on funds deposited in the Custodial Account by the
depository institution shall accrue to the benefit of the Servicer and the
Servicer shall be entitled to retain and withdraw such interest from the
Custodial Account pursuant to Section 3.04. Additionally, any other benefit
derived from the Custodial Account associated with the receipt, disbursement and
accumulation of principal, interest, taxes, hazard insurance, mortgage
insurance, etc. shall accrue to the Servicer.
Section 3.04 Permitted Withdrawals From Custodial Account.
The Servicer shall, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(i) to make payments to the Master Servicer in the amounts and in the
manner provided for in Section 4.01;
(ii) with respect to each LPMI Loan, in the amount of the related LPMI
Fee, to make payments with respect to premiums for LPMI Policies in accordance
with Section 3.07;
(iii) in the event the Servicer has elected not to retain the Servicing
Fee out of any Mortgagor payments on account of interest or other recovery of
interest with respect to a particular Mortgage Loan (including late collections
of interest on such Mortgage Loan, or interest portions of Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds) prior to the deposit of such
Mortgagor payment or recovery in the Custodial Account, to pay to itself the
related Servicing Fee from all such Mortgagor payments on account of interest or
other such recovery for interest with respect to that Mortgage Loan;
(iv) to pay itself investment earnings on funds deposited in the
Custodial Account;
(v) to clear and terminate the Custodial Account upon the termination
of this Agreement;
(vi) to transfer funds to another Eligible Institution in accordance
with Section 3.11 hereof;
(vii) to invest funds in certain Eligible Investments in accordance
with Section 3.11 hereof;
(viii) to reimburse itself to the extent of funds in the Custodial
Account for Monthly Advances of the Servicer's funds made pursuant to Section
4.03, the Servicer's right to reimburse itself pursuant to this subclause (viii)
with respect to any Mortgage Loan being limited to amounts received on or in
respect of the related Mortgage Loan which represent late recoveries of payments
of principal or interest with respect to which a Monthly Advance was made, it
being understood that, in the case of any such reimbursement, the Servicer's
right thereto shall be prior to the rights of the Trust Fund, provided, however,
that following the final liquidation of a Mortgage Loan, the Servicer may
reimburse itself for previously unreimbursed Monthly Advances in excess of
Liquidation Proceeds or Insurance Proceeds with respect to such Mortgage Loan
from any funds in the Custodial Account, it being understood, in the case of any
such reimbursement, that the Servicer's right thereto shall be prior to the
rights of the Trust Fund. The Servicer may recover at any time from amounts on
deposit in the Custodial Account the amount of any Monthly Advances that the
Servicer deems nonrecoverable or that remain unreimbursed to the Servicer from
related Liquidation Proceeds after the final liquidation of the Mortgage Loan;
-18-
(ix) to reimburse itself for unreimbursed Servicing Advances, and for
any unpaid Servicing Fees, the Servicer's right to reimburse itself pursuant to
this subclause (ix) with respect to any Mortgage Loan being limited to related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition
Proceeds and other amounts received in respect of the related REO Property, and
such other amounts as may be collected by the Servicer from the Mortgagor or
otherwise relating to the Mortgage Loan, it being understood that, in the case
of any such reimbursement, the Servicer's right thereto shall be prior to the
rights of the Trust Fund;
(x) to reimburse itself for remaining unreimbursed Servicing Advances
with respect to any defaulted Mortgage Loan as to which the Servicer has
determined that all amounts that it expects to recover on behalf of the Trust
Fund from or on account of such Mortgage Loan have been recovered;
(xi) to reimburse itself for expenses incurred or reimbursable to the
Servicer pursuant to Sections 3.07, 3.12, 3.13, 3.14 and 6.03 to the extent not
previously reimbursed under clause (ix) of this Section 3.04; and
(xii) to withdraw funds deposited in error.
Section 3.05 Establishment of and Deposits to Escrow Account.
The Servicer shall segregate and hold all funds collected and received
pursuant to a Mortgage Loan constituting Escrow Payments separate and apart from
any of its own funds and general assets and shall establish and maintain one or
more Escrow Accounts, in the form of time deposit or demand accounts, titled as
directed by the Master Servicer. Each Escrow Account shall be an Eligible
Deposit Account established with an Eligible Institution in a manner that shall
provide maximum available insurance thereunder. Funds deposited in the Escrow
Account may be drawn on by the Servicer in accordance with Section 3.06. The
creation of any Escrow Account shall be evidenced by a letter agreement in the
form of Exhibit C. A copy of such certification or letter agreement shall be
furnished to the Master Servicer and the NIMS Insurer and, upon request, to any
subsequent owner of the Mortgage Loans.
The Servicer shall deposit in the Escrow Account or Accounts on a daily
basis, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage Loans, for
the purpose of effecting timely payment of any such items as required under the
terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds that are to be applied to the restoration or repair of any Mortgaged
Property.
-19-
The Servicer shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 3.06. The Servicer shall retain any interest paid on funds deposited in
the Escrow Account by the depository institution, other than interest on
escrowed funds required by law to be paid to the Mortgagor. Additionally, any
other benefit derived from the Escrow Account associated with the receipt,
disbursement and accumulation of principal, interest, taxes, hazard insurance,
mortgage insurance, etc. shall accrue to the Servicer. To the extent required by
law, the Servicer shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or that
interest paid thereon is insufficient for such purposes.
Section 3.06 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the
Servicer only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, sewer rents, mortgage insurance premiums, condominium charges, fire
and hazard insurance premiums or other items constituting Escrow Payments for
the related Mortgage;
(ii) to refund to any Mortgagor any funds found to be in excess of the
amounts required under the terms of the related Mortgage Loan;
(iii) for transfer to the Custodial Account and application to reduce
the principal balance of the Mortgage Loan in accordance with the terms of the
related Mortgage and Mortgage Note;
(iv) to reimburse the Servicer for any Servicing Advance made by the
Servicer with respect to a related Mortgage Loan, but only from amounts received
on the related Mortgage Loan which represent late collections of Escrow
Payments.
(v) for application to restoration or repair of the Mortgaged Property
in accordance with the Xxxxxx Xxx Guides;
(vi) to pay to the Servicer, or any Mortgagor to the extent required by
law, any interest paid on the funds deposited in the Escrow Account
(vii) to remove funds inadvertently placed in the Escrow Account by the
Servicer; and
(viii) to clear and terminate the Escrow Account on the termination of
this Agreement.
Section 3.07 Maintenance of PMI Policy and/or LPMI Policy; Claims.
The Servicer shall comply with all provisions of applicable state and
federal law relating to the cancellation of, or collection of premiums with
respect to, PMI Policies, including, but not limited to, the provisions of the
Homeowners Protection Act of 1998, and all regulations promulgated thereunder,
as amended from time to time.
-20-
With respect to each Mortgage Loan (other than LPMI Loans) with a loan
to value ratio at origination in excess of 80%, the Servicer shall maintain or
cause the Mortgagor to maintain (to the extent that the Mortgage Loan requires
the Mortgagor to maintain such insurance) in full force and effect a PMI Policy,
and shall pay or shall cause the Mortgagor to pay the premium thereon on a
timely basis, until the LTV of such Mortgage Loan is reduced to 80%. In the
event that such PMI Policy shall be terminated, the Servicer shall obtain from
another Qualified Insurer a comparable replacement policy, with a total coverage
equal to the remaining coverage of such terminated PMI Policy, at substantially
the same fee level. The Servicer shall not take any action which would result in
noncoverage under any applicable PMI Policy of any loss which, but for the
actions of the Servicer would have been covered thereunder. In connection with
any assumption or substitution agreements entered into or to be entered into
with respect to a Mortgage Loan, the Servicer shall promptly notify the insurer
under the related PMI Policy, if any, of such assumption or substitution of
liability in accordance with the terms of such PMI Policy and shall take all
actions which may be required by such insurer as a condition to the continuation
of coverage under such PMI Policy. If such PMI Policy is terminated as a result
of such assumption or substitution of liability, the Servicer shall obtain a
replacement PMI Policy as provided above.
The Servicer shall take all such actions as are necessary to service,
maintain and administer the LPMI Loans in accordance with the LPMI Policy and to
perform and enforce the rights of the insured under such LPMI Policy. Except as
expressly set forth herein, the Servicer shall have full authority on behalf of
the Trust Fund to do anything it reasonably deems appropriate or desirable in
connection with the servicing, maintenance and administration of the LPMI
Policy. The Servicer shall not modify or assume a Mortgage Loan covered by the
LPMI Policy or take any other action with respect to such Mortgage Loan which
would result in non-coverage under the LPMI Policy of any loss which, but for
the actions of the Servicer, would have been covered thereunder. If the LPMI
Insurer fails to pay a claim under the LPMI Policy as a result of breach by the
Servicer of its obligations hereunder or under the LPMI Policy, the Servicer
shall be required to deposit in the Custodial Account on or prior to the next
succeeding Remittance Date an amount equal to such unpaid claim from its own
funds without any right to reimbursement from the Trust Fund. The Servicer shall
cooperate with the LPMI Insurer and the Master Servicer and shall use its best
efforts to furnish all reasonable aid, evidence and information in the
possession of the Servicer to which the Servicer has access with respect to any
LPMI Loan; provided, however, notwithstanding anything to the contrary contained
in any LPMI Policy, the Servicer shall not be required to submit any reports to
the LPMI Insurer until a reporting date that is at least 15 days after the
Servicer has received sufficient loan level information from each Seller, the
Master Servicer or the LPMI Insurer to appropriately code its servicing system
in accordance with the LPMI Insurer's requirements.
In connection with its activities as servicer, the Servicer agrees to
prepare and present, on behalf of itself and the Trustee, claims to the insurer
under any PMI Policy or LPMI Policy in a timely fashion in accordance with the
terms of such PMI Policy or LPMI Policy and, in this regard, to take such action
as shall be necessary to permit recovery under any PMI Policy or LPMI Policy
respecting a defaulted Mortgage Loan. Any amounts collected by the Servicer
under any PMI Policy or LPMI Policy shall be deposited in the Custodial Account,
subject to withdrawal pursuant to Section 3.04.
-21-
Section 3.08 Fidelity Bond and Errors and Omissions Insurance.
The Servicer shall keep in force during the term of this Agreement a
Fidelity Bond and Errors and Omissions Insurance Policy. Such Fidelity Bond and
Errors and Omissions Insurance shall be maintained with recognized insurers and
shall be in such form and amount as would permit the Servicer to be qualified as
a Xxxxxx Mae or Xxxxxxx Mac seller-servicer and shall by its terms not be
cancelable without thirty days' prior written notice to the Master Servicer and
the NIMS Insurer. The Servicer shall be deemed to have complied with this
provision if an affiliate of the Servicer has such errors and omissions and
fidelity bond coverage and, by the terms of such insurance policy or fidelity
bond, the coverage afforded thereunder extends to the Servicer. The Servicer
shall furnish to the Master Servicer and the NIMS Insurer a copy of each such
bond and insurance policy if (i) the Master Servicer and the NIMS Insurer so
request and (ii) the Servicer is not an affiliate of Xxxxxx Brothers Inc. at the
time of such request.
Section 3.09 Notification of Adjustments.
With respect to each Adjustable Rate Mortgage Loan, the Servicer shall
adjust the Mortgage Interest Rate on the related interest rate adjustment date
and shall adjust the Monthly Payment on the related mortgage payment adjustment
date, if applicable, in compliance with the requirements of applicable law and
the related Mortgage and Mortgage Note. The Servicer shall execute and deliver
any and all necessary notices required under applicable law and the terms of the
related Mortgage Note and Mortgage regarding the Mortgage Interest Rate and
Monthly Payment adjustments. The Servicer shall promptly, upon written request
therefor, deliver to the Master Servicer such notifications and any additional
applicable data regarding such adjustments and the methods used to calculate and
implement such adjustments. Upon the discovery by the Servicer or the receipt of
notice from the Master Servicer that the Servicer has failed to adjust a
Mortgage Interest Rate or Monthly Payment in accordance with the terms of the
related Mortgage Note, the Servicer shall immediately deposit in the Custodial
Account from its own funds the amount of any interest loss or deferral caused
thereby.
Section 3.10 Completion and Recordation of Assignments of Mortgage.
As soon as practicable after the Closing Date, the Servicing Transfer
Date or the date on which a Qualifying Substitute Mortgage Loan is delivered
pursuant to Section 2.05 of the Trust Agreement, as applicable (but in no event
more than 90 days thereafter except to the extent delays are caused by the
applicable public recording office), the Servicer shall cause the endorsements
on the Mortgage Note (if applicable), and the Assignments of Mortgage (subject
to Section 3.01(a)) to be completed in the name of the Trustee (or MERS, as
applicable).
Section 3.11 Protection of Accounts.
The Servicer may transfer any Custodial Account or any Escrow Account
to a different Eligible Institution from time to time; provided that in the
event the Custodial Account or any Escrow Account is held in a depository
institution or trust company that ceases to be an Eligible Institution, the
Servicer shall transfer such Custodial Account or Escrow Account, as the case
may be, to an Eligible Institution. The Servicer shall give notice to the Master
Servicer and the NIMS Insurer of any change in the location of the Custodial
Account.
-22-
The Servicer shall bear any expenses, losses or damages sustained by
the Master Servicer or the Trustee if the Custodial Account and/or the Escrow
Account are not demand deposit accounts.
Amounts on deposit in the Custodial Account and the Escrow Account may
at the option of the Servicer be invested in Eligible Investments. Any such
Eligible Investment shall mature no later than the Business Day immediately
preceding the related Remittance Date; provided, however, that if such Eligible
Investment is an obligation of an Eligible Institution (other than the Servicer)
that maintains the Custodial Account or the Escrow Account, then such Eligible
Investment may mature on the related Remittance Date. Any such Eligible
Investment shall be made in the name of the Servicer in trust for the benefit of
the Trustee. All income on or gain realized from any such Eligible Investment
shall be for the benefit of the Servicer and may be withdrawn at any time by the
Servicer. Any losses incurred in respect of any such investment shall be
deposited in the Custodial Account or the Escrow Account, by the Servicer out of
its own funds immediately as realized.
Section 3.12 Payment of Taxes, Insurance and Other Charges.
With respect to each Mortgage Loan, the Servicer shall maintain
accurate records reflecting the status of ground rents, taxes, assessments,
water rates, sewer rents, and other charges which are or may become a lien upon
the Mortgaged Property and the status of PMI Policy and LPMI Policy (if any)
premiums and fire and hazard insurance coverage and shall obtain, from time to
time, all bills for the payment of such charges (including renewal premiums) and
shall effect payment thereof prior to the applicable penalty or termination
date, employing for such purpose deposits of the Mortgagor in the Escrow Account
which shall have been estimated and accumulated by the Servicer in amounts
sufficient for such purposes, as allowed under the terms of the Mortgage. The
Servicer shall not be required to maintain records with respect to the payment
of LPMI Premiums unless the Servicer shall be required to make payment of such
premiums and such requirement shall be indicated on the Mortgage Loan Schedule
with respect to each applicable Mortgage Loan. The Servicer assumes full
responsibility for the timely payment of all such bills, shall effect timely
payment of all such charges irrespective of each Mortgagor's faithful
performance in the payment of same or the making of the Escrow Payments, and
shall make advances from its own funds to effect such payments. With regard to
any Mortgage Loans for which the Mortgagor is not required to escrow Escrow
Payments with the Servicer, the Servicer shall use reasonable efforts consistent
with Accepted Servicing Practices to determine that any such payments are made
by the Mortgagor at the time they first became due and shall insure that the
Mortgaged Property is not lost to a tax lien as a result of nonpayment and that
such Mortgage is not left uninsured and shall make advances from its own funds
to effect any such delinquent payments to avoid the lapse of insurance coverage
on the Mortgaged Property or to avoid the imposition of a tax lien.
Section 3.13 Maintenance of Hazard Insurance.
The Servicer shall cause to be maintained for each Mortgage Loan hazard
insurance such that all buildings upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are customary in the area where the Mortgaged Property
is located, in an amount which is at least equal to the greater of (i) the then
outstanding principal balance of the Mortgage Loan and (ii) an amount such that
the proceeds thereof shall be sufficient to prevent the Mortgagor or the loss
payee from becoming a co-insurer.
-23-
If upon origination of the Mortgage Loan, the related Mortgaged
Property was located in an area identified in the Federal Register by the Flood
Emergency Management Agency as having special flood hazards (and such flood
insurance has been made available) a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
is in effect with a generally acceptable insurance carrier in an amount
representing coverage equal to the lesser of (i) the minimum amount required,
under the terms of coverage, to compensate for any damage or loss on a
replacement cost basis (or the unpaid balance of the mortgage if replacement
cost coverage is not available for the type of building insured) and (ii) the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. If at any time during the term of the
Mortgage Loan, the Servicer determines in accordance with applicable law and
pursuant to the Xxxxxx Xxx Guides that a Mortgaged Property is located in a
special flood hazard area and is not covered by flood insurance or is covered in
an amount less than the amount required by the Flood Disaster Protection Act of
1973, as amended, the Servicer shall notify the related Mortgagor that the
Mortgagor must obtain such flood insurance coverage, and if said Mortgagor fails
to obtain the required flood insurance coverage within forty-five (45) days
after such notification, the Servicer shall force place the required flood
insurance on the Mortgagor's behalf.
Section 3.14 Maintenance of Mortgage Blanket Insurance.
The Servicer shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards covered under extended coverage on
all of the Mortgage Loans. To the extent such policy provides coverage in an
amount equal to the amount required pursuant to Section 3.13 and otherwise
complies with all other requirements of Section 3.13, it shall conclusively be
deemed to have satisfied its obligations as set forth in Section 3.13. Any
amounts collected by the Servicer under any such policy relating to a Mortgage
Loan shall be deposited in the Custodial Account or Escrow Account subject to
withdrawal pursuant to Sections 3.04 or 3.06. Such policy may contain a
deductible clause, in which case, in the event that there shall not have been
maintained on the related Mortgaged Property a policy complying with Section
3.13, and there shall have been a loss which would have been covered by such
policy, the Servicer shall deposit in the Custodial Account at the time of such
loss the amount not otherwise payable under the blanket policy because of such
deductible clause, such amount to be deposited from the Servicer's funds,
without reimbursement therefor.
Section 3.15 Restoration of Mortgaged Property.
The Servicer need not obtain the approval of the Trustee or the Master
Servicer prior to releasing any Insurance Proceeds or Condemnation Proceeds to
the Mortgagor to be applied to the restoration or repair of the Mortgaged
Property if such release is in accordance with Accepted Servicing Practices. At
a minimum, with respect to claims greater than $10,000, the Servicer shall
comply with the following conditions in connection with any such release of
Insurance Proceeds or Condemnation Proceeds:
-24-
(i) the Servicer shall receive satisfactory independent
verification of completion of repairs and issuance of any required approvals
with respect thereto;
(ii) the Servicer shall take all steps necessary to preserve
the priority of the lien of the Mortgage, including, but not limited to
requiring waivers with respect to mechanics' and materialmen's liens; and
(iii) pending repairs or restoration, the Servicer shall place
the Insurance Proceeds or Condemnation Proceeds in the Escrow Account.
Section 3.16 Title, Management and Disposition of REO Property.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Trustee (or MERS, as applicable), or in the
event the Trustee is not authorized or permitted to hold title to real property
in the state where the REO Property is located, or would be adversely affected
under the "doing business" or tax laws of such state by so holding title, the
deed or certificate of sale shall be taken in the name of such Person or Persons
as shall be consistent with an Opinion of Counsel obtained by the Servicer from
any attorney duly licensed to practice law in the state where the REO Property
is located. The Person or Persons holding such title other than the Trustee
shall acknowledge in writing that such title is being held as nominee for the
Trustee.
The Servicer shall manage, conserve, protect and operate each REO
Property for the Trustee solely for the purpose of its prompt disposition and
sale. The Servicer, either itself or through an agent selected by the Servicer,
shall manage, conserve, protect and operate the REO Property in the same manner
that it manages, conserves, protects and operates other foreclosed property for
its own account, and in the same manner that similar property in the same
locality as the REO Property is managed. The Servicer shall attempt to sell the
same (and may temporarily rent the same for a period not greater than one year,
except as otherwise provided below) on such terms and conditions as the Servicer
deems to be in the best interest of the Trustee. If the Servicer determines that
it is in the best interest of the Trustee to not proceed with foreclosure or
accept a deed in lieu of foreclosure, the Servicer shall have the right to do
so, whereupon the related Mortgage Loan shall be deemed to be finally liquidated
and the Servicer shall have the right to release the lien of the Mortgage on the
related Mortgage Property and the Servicer shall be entitled to reimbursement
for all outstanding unreimbursed Servicing Advances and Monthly Advances from
the Custodial Account in accordance with Section 3.04(viii).
The Servicer may permit an obligor to pay off a non-performing Mortgage
Loan at less than its unpaid principal balance or chargeoff all or a portion of
such non-performing Mortgage Loan if such discounted payoff or chargeoff is in
accordance with Accepted Servicing Practices and the Servicer believes that such
discounted payoff or chargeoff is in the best interest of the Trust Fund;
provided that in the case of any proposed discounted payoff or proposed
chargeoff, the Servicer shall notify the Master Servicer and the NIMS Insurer,
by telecopy and telephone, of the proposed discounted payoff or chargeoff. The
Master Servicer and the NIMS Insurer shall each be deemed to have approved the
discounted payoff or chargeoff of any Mortgage Loan unless either of the Master
Servicer or the NIMS Insurer notifies the Servicer in writing, within five (5)
Business Days after its receipt of the related notice, that it disapproves of
the discounted payoff or chargeoff, in which case the Servicer shall not proceed
with such discounted payoff or chargeoff.
-25-
Notwithstanding anything to the contrary contained in this Section
3.16, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the Servicer has reasonable cause to believe that a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
or if the Master Servicer or NIMS Insurer otherwise requests, an environmental
inspection or review of such Mortgaged Property to be conducted by a qualified
inspector shall be arranged by the Servicer. Upon completion of the inspection,
the Servicer shall provide the Master Servicer and the NIMS Insurer with a
written report of such environmental inspection. In the event that the
environmental inspection report indicates that the Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, the Servicer shall not
proceed with foreclosure or acceptance of a deed in lieu of foreclosure. In the
event that the environmental inspection report is inconclusive as to the whether
or not the Mortgaged Property is contaminated by hazardous or toxic substances
or wastes, the Servicer shall not, without the prior approval of the Master
Servicer and the NIMS Insurer, proceed with foreclosure or acceptance of a deed
in lieu of foreclosure. In such instance, the Master Servicer and the NIMS
Insurer shall be deemed to have approved such foreclosure or acceptance of a
deed in lieu of foreclosure unless either party notifies the Servicer in
writing, within two (2) Business Days after its receipt of written notice of the
proposed foreclosure or deed in lieu of foreclosure from the Servicer, that it
disapproves of the related foreclosure or acceptance of a deed in lieu of
foreclosure. The Servicer shall be reimbursed for all Servicing Advances made
pursuant to this paragraph with respect to the related Mortgaged Property from
the Custodial Account.
The Servicer shall use its Best Efforts to dispose of the REO Property
as soon as possible and shall sell such REO Property in any event within three
years after title has been taken to such REO Property, unless (a) a REMIC
election has not been made with respect to the arrangement under which the
Mortgage Loans and the REO Property are held, and (b) the Servicer determines,
and gives an appropriate notice to the Master Servicer to such effect, that a
longer period is necessary for the orderly liquidation of such REO Property. If
a period longer than three years is permitted under the foregoing sentence and
is necessary to sell any REO Property, (i) the Servicer shall report monthly to
the Master Servicer as to the progress being made in selling such REO Property
and (ii) if, with the written consent of the Trustee, a purchase money mortgage
is taken in connection with such sale, such purchase money mortgage shall name
the Servicer as mortgagee, and such purchase money mortgage shall not be held
pursuant to this Agreement, but instead a separate participation agreement among
the Servicer and Trustee shall be entered into with respect to such purchase
money mortgage. Notwithstanding anything herein to the contrary, the Servicer
shall not be required to provide financing for the sale of any REO Property.
The Servicer shall also maintain on each REO Property fire and hazard
insurance with extended coverage in amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
-26-
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 or held by or on behalf of the Trust Fund in such a manner, or
pursuant to any terms or for a period 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) result in the imposition of any tax upon any
REMIC included in the Trust Fund. Subject to the approval of the Master Servicer
and the NIMS Insurer as described in this paragraph, the disposition of REO
Property shall be carried out by the Servicer at such price, and upon such terms
and conditions, as the Servicer deems to be in the best interests of the Trust
Fund.
Prior to acceptance by the Servicer of an offer to sell any REO
Property, the Servicer shall notify the Master Servicer and the NIMS Insurer of
such offer in writing which notification shall set forth all material terms of
said offer (each a "Notice of Sale"). The Master Servicer and the NIMS Insurer
shall be deemed to have approved the sale of any REO Property unless either
notifies the Servicer in writing, within two (2) Business Days after its receipt
of the related Notice of Sale, that it disapproves of the related sale, in which
case the Servicer shall not proceed with the sale. With respect to any REO
Property, upon a REO Disposition, the Servicer shall be entitled to retain from
REO Disposition Proceeds a disposition fee equal to $1,500.
The Servicer shall withdraw from the Custodial Account funds necessary
for the proper operation, management and maintenance of the REO Property,
including the cost of maintaining any hazard insurance pursuant to the Xxxxxx
Xxx Guides. The Servicer shall make monthly distributions on each Remittance
Date to the Master Servicer of the net cash flow from the REO Property (which
shall equal the revenues from such REO Property net of the expenses described in
this Section 3.16 and of any reserves reasonably required from time to time to
be maintained to satisfy anticipated liabilities for such expenses).
Section 3.17 Real Estate Owned Reports.
Together with the statement furnished pursuant to Section 4.02, the
Servicer shall furnish to the Master Servicer and the NIMS Insurer on or before
the Remittance Date each month a statement with respect to any REO Property
covering the operation of such REO Property for the previous month and the
Servicer's efforts in connection with the sale of such REO Property and any
rental of such REO Property incidental to the sale thereof for the previous
month. That statement shall be accompanied by such other information as either
the Master Servicer or the NIMS Insurer shall reasonably request.
Section 3.18 MERS.
(a) So long as the Trustee is a member of MERS, the Servicer shall use
its Best Efforts to cause the Trustee to be identified as the owner of each MERS
Mortgage Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
(b) The Servicer shall maintain in good standing its membership in
MERS. In addition, the Servicer shall comply with all rules, policies and
procedures of MERS, including the Rules of Membership, as amended, and the MERS
Procedures Manual, as amended.
-27-
(c) With respect to all MERS Mortgage Loans serviced hereunder, the
Servicer shall promptly notify MERS as to any transfer of beneficial ownership
of such Mortgage Loans of which the Servicer has notice.
(d) With respect to all MERS Mortgage Loans serviced hereunder, the
Servicer shall notify MERS as to any transfer of servicing pursuant to Section
9.01 within 10 Business Days of such transfer of servicing. The Servicer shall
cooperate with the Trustee, the Master Servicer and any successor servicer to
the extent necessary to ensure that such transfer of servicing is appropriately
reflected on the MERS system.
Section 3.19 Waiver of Prepayment Penalty Amounts.
Except as provided below, the Servicer or any designee of the Servicer
shall not waive any Prepayment Penalty Amount with respect to any Mortgage Loan.
If the Servicer or its designee fails to collect a Prepayment Penalty Amount at
the time of the related prepayment of any Mortgage Loan subject to such
Prepayment Penalty Amount, the Servicer shall pay to the Trust Fund at such time
(by deposit to the Custodial Account) an amount equal to the amount of the
Prepayment Penalty Amount not collected; provided, however, the Servicer shall
not have any obligation to pay the amount of any uncollected Prepayment Penalty
Amount under this Section 3.19 if the failure to collect such amount is the
result of inaccurate or incomplete information in the Prepayment Penalty Amount
Schedule provided by the Seller and which is included as part of the Mortgage
Loan Schedule attached hereto as Exhibit A. The Prepayment Penalty Amounts
listed on the Prepayment Penalty Amount Schedule attached hereto as Exhibit A
are complete, true and accurate and may be relied on by the Servicer in its
calculation of Prepayment Penalty Amounts. If the Prepayment Penalty Amount data
set forth on Exhibit A is incorrect, then the Servicer shall have no liability
for any loss resulting from calculation of Prepayment Penalty Amounts using the
data provided. Notwithstanding the above, the Servicer or its designee may waive
a Prepayment Penalty Amount without paying to the Trust Fund the amount of such
Prepayment Penalty Amount only if such Prepayment Penalty Amount (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 Loan,
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, if collected, would be a
violation of applicable laws.
ARTICLE IV.
PAYMENTS TO MASTER SERVICER
Section 4.01 Remittances.
On each Remittance Date, no later than 3:00 p.m. Eastern Standard Time,
the Servicer shall remit on a scheduled/scheduled basis by wire transfer of
immediately available funds to the Master Servicer (i) all amounts deposited in
the Custodial Account as of the close of business on the last day of the related
Due Period (net of charges against or withdrawals from the Custodial Account
pursuant to Section 3.04), plus (ii) all Monthly Advances, if any, which the
Servicer is obligated to remit pursuant to Section 4.03 (and which the Servicer
has not already deposited in the Custodial Agreement pursuant to Section
3.03(viii)); minus (iii) any amounts attributable to Principal Prepayments,
-28-
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds or REO
Disposition Proceeds received after the applicable Prepayment Period, which
amounts shall be remitted on the following Remittance Date, together with any
additional interest required to be deposited in the Custodial Account in
connection with such Principal Prepayment in accordance with Section 3.03(vi),
and minus (iv) any amounts attributable to Monthly Payments collected but due on
a Due Date or Due Dates subsequent to the first day of the month in which such
Remittance Date occurs, which amounts shall be remitted on the Remittance Date
next succeeding the Due Date related to such Monthly Payment.
With respect to any remittance received by the Master Servicer after
the Business Day on which such payment was due, the Servicer shall pay to the
Master Servicer interest on any such late payment at an annual rate equal to the
Prime Rate, adjusted as of the date of each change, plus two (2) percentage
points, but in no event greater than the maximum amount permitted by applicable
law. Such interest shall be deposited in the Custodial Account by the Servicer
on the date such late payment is made and shall cover the period commencing with
the day following such Business Day and ending with the Business Day on which
such payment is made, both inclusive. Such interest shall be remitted along with
the distribution payable on the next succeeding Remittance Date. The payment by
the Servicer of any such interest shall not be deemed an extension of time for
payment or a waiver of any Event of Default by the Trustee or the Master
Servicer.
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: SARM 2004-7
Section 4.02 Statements to Master Servicer.
Not later than the tenth (10th) calendar day of each month (or if such
calendar day is not a Business Day, the immediately preceding Business Day), the
Servicer shall furnish to the Master Servicer, and the NIMS Insurer (i) a
monthly remittance advice in the format set forth in Exhibit D-1 hereto and a
monthly defaulted loan report in the format set forth in Exhibit D-2 hereto (or
in such other format mutually agreed between the Servicer and the Master
Servicer) relating to the period ending on the last day of the preceding
calendar month and (ii) all such information required pursuant to clause (i)
above on a magnetic tape or other similar media reasonably acceptable to the
Master Servicer.
-29-
Not later than the seventeenth day of each month, the Servicer shall
furnish to the Master Servicer (a) a monthly payoff remittance advice regarding
any Principal Prepayments in full applied to the related Mortgage Loan on or
after the seventeenth day of the month preceding the month of such reporting
date, but on or before the sixteenth day of the month of such reporting date,
containing such information and in such format as is mutually acceptable to the
Master Servicer and the Servicer, and in any event containing sufficient
information to permit the Master Servicer to properly report Principal
Prepayment in full information to the Trustee under the Trust Agreement and (b)
all such information required pursuant to clause (a) above in electronic format,
on magnetic tape or other similar media reasonably acceptable to the Master
Servicer.
In addition, not more than 60 days after the end of each calendar year,
commencing December 31, 2004, the Servicer shall furnish to each Person who was
an owner of the Mortgage Loans at any time during such calendar year as required
by applicable law or if not required by applicable law, at the request of such
owner as to the aggregate of remittances for the applicable portion of such
year.
Such obligation of the Servicer shall be deemed to have been satisfied
to the extent that substantially comparable information shall be provided by the
Servicer pursuant to any requirements of the Internal Revenue Code as from time
to time are in force.
The Master Servicer may request that the Servicer provide, at the
Master Servicer's expense, an appraisal or a broker price opinion on any
Mortgage Loan which is 90 days or more delinquent. The Servicer shall use its
best efforts to deliver such appraisal or broker price opinion to the Master
Servicer within 15 calendar days after such request.
Beginning with calendar year 2004, the Servicer shall provide the
Master Servicer with such information concerning the Mortgage Loans as is
necessary for the Securities Administrator or the Trustee to prepare the Trust
Fund's federal income tax return as the Securities Administrator or the Trustee
may reasonably request from time to time.
Section 4.03 Monthly Advances by Servicer.
On the Business Day immediately preceding each Remittance Date, the
Servicer shall deposit in the Custodial Account from its own funds or from
amounts held for future distribution, or both, an amount equal to the aggregate
of all Monthly Advances relating to Monthly Payments which were due on the
Mortgage Loans during the applicable Due Period and which were delinquent at the
close of business on the immediately preceding Determination Date or which were
deferred pursuant to Section 3.01. Any amounts held for future distribution and
so used shall be replaced by the Servicer by deposit in the Custodial Account on
or before any future Remittance Date if funds in the Custodial Account on such
Remittance Date shall be less than remittances to the Master Servicer required
to be made on such Remittance Date. The Servicer shall keep appropriate records
of such amounts and will provide such records to the Master Servicer and the
NIMS Insurer upon request. The Servicer's obligation to make such Monthly
Advances as to any Mortgage Loan will continue through the last Monthly Payment
due prior to the payment in full of the Mortgage Loan, or through the last
Remittance Date prior to the Remittance Date for the distribution of all
Liquidation Proceeds and other payments or recoveries (including Insurance
Proceeds and Condemnation Proceeds) with respect to the Mortgage Loan unless the
Servicer deems such Monthly Advances to be unrecoverable, as evidenced by an
Officer's Certificate of the Servicer delivered to the Master Servicer.
-30-
ARTICLE V.
GENERAL SERVICING PROCEDURES
Section 5.01 Servicing Compensation.
As consideration for servicing the Mortgage Loans subject to this
Agreement, the Servicer shall retain (i) the relevant Servicing Fee for each
Mortgage Loan remaining subject to this Agreement during any month and (ii)
Ancillary Income. In addition, if at any time the Servicer is the Retained
Interest Holder with respect to any Mortgage Loans, then the Servicer, as the
Retained Interest Holder, shall retain an amount equal to the Retained Interest
relating to such Mortgage Loans; provided, that (i) the Trustee and the Master
Servicer shall have no obligation to make payment of the Retained Interest to
the Servicer and (ii) the Servicer's right to retain the Retained Interest is
limited to (and the Retained Interest may only be retained from) the interest
portion (including recoveries with respect to interest from Liquidation
Proceeds) of the Monthly Payments collected by the Servicer with respect to
those Mortgage Loans for which payment is in fact made of the entire amount of
the Monthly Payment. The Servicing Fee shall be payable monthly. The Servicing
Fees shall be payable only at the time of and with respect to those Mortgage
Loans for which payment is in fact made of the entire amount of the Monthly
Payment or as otherwise provided in Section 3.04. The obligation of the Trustee
to pay the Servicing Fees is limited as provided in Section 3.04. The aggregate
of the Servicing Fees payable to the Servicer for any month with respect to the
Mortgage Loans shall be reduced by any Prepayment Interest Shortfall Amount with
respect to such month. Any Prepayment Interest Excess Amount shall be retained
by, or paid to, the Servicer as a part of the Servicing Fee.
The Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled to
reimbursement thereof except as specifically provided for herein.
Section 5.02 Annual Audit Report.
On or before March 15th of each year, beginning with March 15, 2005,
Servicer shall, at its own expense, cause a firm of independent public
accountants (who may also render other services to Servicer), which is a member
of the American Institute of Certified Public Accountants, to furnish to the
Seller, the NIMS Insurer, the Trustee, the Depositor and the Master Servicer (i)
year-end audited (if available) financial statements of the Servicer and (ii) a
statement to the effect that such firm has examined certain documents and
records for the preceding fiscal year (or during the period from the date of
commencement of such Servicer's duties hereunder until the end of such preceding
fiscal year in the case of the first such certificate) and that, on the basis of
such examination conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers, such firm is of the opinion that
Servicer's overall servicing operations have been conducted in compliance with
the Uniform Single Attestation Program for Mortgage Bankers except for such
exceptions that, in the opinion of such firm, the Uniform Single Attestation
Program for Mortgage Bankers requires it to report, in which case such
exceptions shall be set forth in such statement.
-31-
Section 5.03 Annual Officer's Certificate.
(a) On or before March 15th of each year, beginning with March 15,
2005, the Servicer, at its own expense, will deliver to the Seller, the NIMS
Insurer, the Trustee, the Depositor and the Master Servicer a Servicing
Officer's certificate stating, as to each signer thereof, that (i) a review of
the activities of the Servicer during such preceding fiscal year and of
performance under this Agreement has been made under such officers' supervision,
and (ii) to the best of such officers' knowledge, based on such review, the
Servicer has fulfilled all its obligations under this Agreement for such year,
or, if there has been a default in the fulfillment of all such obligations,
specifying each such default known to such officers and the nature and status
thereof including the steps being taken by the Servicer to remedy such default.
(b) For so long as a certificate under the Xxxxxxxx-Xxxxx Act of 2002,
as amended, ("Xxxxxxxx-Xxxxx") is required to be given on behalf of the Trust
Fund, no later than March 15th of each year (or if not a Business Day, the
immediately preceding Business Day), or at any other time that the Master
Servicer, the Depositor or the Trustee provides a certification pursuant to
Xxxxxxxx-Xxxxx and upon thirty (30) days written request of such parties, an
officer of the Servicer shall execute and deliver an Officer's Certificate to
the Master Servicer, the Trustee and the Depositor for the benefit of the Trust
Fund and the Master Servicer, the Trustee and the Depositor and their officers,
directors and affiliates, in the form of Exhibit E hereto.
Section 5.04 Transfers of Mortgaged Property.
The Servicer shall use its best efforts to enforce any "due-on-sale"
provision contained in any Mortgage or Mortgage Note and to deny assumption by
the person to whom the Mortgaged Property has been or is about to be sold
whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains liable on the Mortgage and the Mortgage Note; provided that,
if in the Servicer's prudent business judgment, it determines that an assumption
of the Mortgage Loan is in the best interests of the Trust Fund, it shall
deliver notice of such determination to the Master Servicer and may permit such
assumption if approved by the Master Servicer. When the Mortgaged Property has
been conveyed by the Mortgagor, the Servicer shall, to the extent it has
knowledge of such conveyance, so long as the Master Servicer has not consented
to an assumption in accordance with the preceding sentence, exercise its rights
to accelerate the maturity of such Mortgage Loan under the "due-on-sale" clause
applicable thereto, provided, however, that the Servicer shall not be required
to take such action if the Servicer, in its prudent business judgment, believes
it is not in the best interests of the Trust Fund and shall not exercise such
rights if prohibited by law from doing so or if the exercise of such rights
would impair or threaten to impair any recovery under the related PMI Policy or
LPMI Policy, if any.
If the Servicer reasonably believes it is unable under applicable law
to enforce such "due-on-sale" clause or if the Master Servicer approves such
assumption pursuant to the preceding paragraph, the Servicer shall enter into
(i) an assumption and modification agreement with the person to whom such
property has been conveyed, pursuant to which such person becomes liable under
the Mortgage Note and the original Mortgagor remains liable thereon or (ii) in
the event the Servicer is unable under applicable law to require that the
-32-
original Mortgagor remain liable under the Mortgage Note and the Servicer has
the prior consent of the primary mortgage guaranty insurer, a substitution of
liability agreement with the owner of the Mortgaged Property pursuant to which
the original Mortgagor is released from liability and the owner of the Mortgaged
Property is substituted as Mortgagor and becomes liable under the Mortgage Note;
provided that no such substitutions should be permitted unless such person
satisfies the underwriting criteria of the Servicer and has a credit risk rating
at least equal to that of the original Mortgagor. The Mortgage Loan, as assumed,
shall conform in all respects to the requirements, representations and
warranties of this Agreement. The Servicer shall notify the Master Servicer that
any such assumption or substitution agreement has been contemplated by
forwarding to the Master Servicer a copy of such assumption or substitution
agreement (indicating the Mortgage File to which it relates). The Servicer shall
forward an original copy of such agreement to the Custodian to be held by the
Custodian with the other documents related to such Mortgage Loan. The Servicer
shall be responsible for recording any such assumption or substitution
agreements. In connection with any such assumption or substitution agreement,
the Monthly Payment on the related Mortgage Loan shall not be changed but shall
remain as in effect immediately prior to the assumption or substitution, the
Mortgage Interest Rate, the stated maturity or the outstanding principal amount
of such Mortgage Loan shall not be changed nor shall any required monthly
payments of principal or interest be deferred or forgiven. Any assumption fee
collected by the Servicer for entering into an assumption agreement shall be
retained by the Servicer as additional servicing compensation. In connection
with any such assumption, neither the Mortgage Interest Rate borne by the
related Mortgage Note, the term of the Mortgage Loan nor the outstanding
principal amount of the Mortgage Loan shall be changed.
ARTICLE VI.
REPRESENTATIONS, WARRANTIES
AND AGREEMENTS
Section 6.01 Representations, Warranties and Agreements of the
Servicer.
The Servicer, as a condition to the consummation of the transactions
contemplated hereby, hereby makes the following representations and warranties
to the Seller, the Master Servicer and the Trustee as of the Closing Date:
(a) Due Organization and Authority. The Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good standing
in each state where a Mortgaged Property is located if the laws of such state
require licensing or qualification in order to conduct business of the type
conducted by the Servicer, and in any event the Servicer is in compliance with
the laws of any such state to the extent necessary to ensure the enforceability
of the terms of this Agreement; the Servicer has the full power and authority to
execute and deliver this Agreement and to perform in accordance herewith; the
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Servicer and the
consummation of the transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and enforceable
obligation of the Servicer and all requisite action has been taken by the
Servicer to make this Agreement valid and binding upon the Servicer in
accordance with its terms;
-33-
(b) Ordinary Course of Business. The consummation of the transactions
contemplated by this Agreement are in the ordinary course of business of the
Servicer;
(c) No Conflicts. Neither the execution and delivery of this Agreement,
the acquisition of the servicing responsibilities by the Servicer or the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Servicer's organizational
documents or any legal restriction or any agreement or instrument to which the
Servicer is now a party or by which it is bound, or constitute a default or
result in an acceleration under any of the foregoing, or result in the violation
of any law, rule, regulation, order, judgment or decree to which the Servicer or
its property is subject, or impair the ability of the Servicer to service the
Mortgage Loans, or impair the value of the Mortgage Loans;
(d) Ability to Perform. The Servicer does not believe, nor does it have
any reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Servicer which, either in any
one instance or in the aggregate, may result in any material adverse change in
the business, operations, financial condition, properties or assets of the
Servicer, or in any material impairment of the right or ability of the Servicer
to carry on its business substantially as now conducted, or in any material
liability on the part of the Servicer, or which would draw into question the
validity of this Agreement or of any action taken or to be taken in connection
with the obligations of the Servicer contemplated herein, or which would be
likely to impair materially the ability of the Servicer to perform under the
terms of this Agreement;
(f) No Consent Required. No consent, approval, authorization or order
of any court or governmental agency or body is required for the execution,
delivery and performance by the Servicer of or compliance by the Servicer with
this Agreement;
(g) Ability to Service. The Servicer is an approved seller/servicer of
conventional residential mortgage loans for Xxxxxx Mae or Xxxxxxx Mac, with the
facilities, procedures, and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage Loans. The Servicer
is in good standing to service mortgage loans for either Xxxxxx Mae or Xxxxxxx
Mac. The Servicer is a member in good standing of the MERS system;
(h) No Untrue Information. Neither this Agreement nor any statement,
report or other document furnished or to be furnished pursuant to this Agreement
or in connection with the transactions contemplated hereby contains any untrue
statement of fact or omits to state a fact necessary to make the statements
contained therein not misleading; and
(i) No Commissions to Third Parties. The Servicer has not dealt with
any broker or agent or anyone else who might be entitled to a fee or commission
in connection with this transaction other than the Seller.
-34-
Section 6.02 Remedies for Breach of Representations and Warranties of
the Servicer.
It is understood and agreed that the representations and warranties set
forth in Section 6.01 shall survive the engagement of the Servicer to perform
the servicing responsibilities as of the Closing Date or Servicing Transfer
Date, as applicable, hereunder and the delivery of the Servicing Files to the
Servicer and shall inure to the benefit of the Seller and the Trustee. Upon
discovery by either the Servicer, the Master Servicer, the Seller, the Depositor
or the NIMS Insurer of a breach of any of the foregoing representations and
warranties which materially and adversely affects the ability of the Servicer 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 Seller or the Trustee, 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
Servicer of any breach of a representation or warranty set forth in Section 6.01
which materially and adversely affects the ability of the Servicer 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, the Servicer shall
use its Best Efforts promptly to cure such breach in all material respects and,
if such breach cannot be cured, the Servicer shall, at the Master Servicer or
the NIMS Insurer's option, assign the Servicer's rights and obligations under
this Agreement (or respecting the affected Mortgage Loans) to a successor
Servicer. Such assignment shall be made in accordance with Section 9.01.
In addition, the Servicer shall indemnify the Seller, the Master
Servicer, the Trustee and the NIMS Insurer 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 Servicer's
representations and warranties contained in this Agreement. It is understood and
agreed that the remedies set forth in this Section 6.02 constitute the sole
remedies of the Seller, the Master Servicer, the Trustee and the NIMS Insurer
respecting a breach of the foregoing representations and warranties.
Any cause of action against the Servicer relating to or arising out of
the breach of any representations and warranties made in Section 6.01 shall
accrue upon (i) discovery of such breach by the Servicer or notice thereof by
the Seller, the Master Servicer, the Depositor, the Trustee or the NIMS Insurer
to the Servicer, (ii) failure by the Servicer to cure such breach within the
applicable cure period, and (iii) demand upon the Servicer by the Seller, Master
Servicer, the Depositor or the NIMS Insurer for compliance with this Agreement.
Section 6.03 Additional Indemnification by the Servicer; Third Party
Claims.
-35-
The Servicer shall indemnify the Seller, the Depositor, the Trustee,
the Master Servicer, the NIMS Insurer and the Trust Fund, and hold them harmless
against any and all Costs that any such indemnified party may sustain in any way
related to (i) the failure of the Servicer to perform its duties and service the
Mortgage Loans in material compliance with the terms of this Agreement
(including, but not limited to its obligation to provide the certification
pursuant to Section 5.03(b) hereunder) or for any inaccurate or misleading
information provided in the certification required pursuant to Section 5.03(b)
or (ii) the failure of the Servicer to cause any event to occur or not to occur
which would have occurred or would not have occurred, as applicable, if the
Servicer were applying Accepted Servicing Practices under this Agreement. The
Servicer shall immediately notify the Seller, the Depositor, the Master
Servicer, the Trustee, the NIMS Insurer 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 in the event of
an indemnified claim) the defense of any such claim and pay all expenses in
connection therewith, including counsel fees, promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or any other
party in respect of such claim and follow any written instructions received from
such indemnifying party in connection with such claim. Subject to the Servicer's
indemnification pursuant to Section 6.02, or the failure of the Servicer to
service and administer the Mortgage Loans in material compliance with the terms
of this Agreement, the Trust Fund shall indemnify the Servicer and hold the
Servicer harmless against any and all Costs that the Servicer may sustain in
connection with any legal action relating to this Agreement, the Certificates or
the origination or Servicing of the Mortgage Loans by any prior owner or
servicer, other than any Costs incurred by reason of the Servicer's willful
misfeasance, bad faith or negligence in the performance of duties hereunder or
by reason of its reckless disregard of obligations and duties hereunder.
Section 6.04 Indemnification with Respect to Certain Taxes and Loss of
REMIC Status.
In the event that any REMIC fails to qualify as a REMIC, loses its
status as a REMIC, or incurs federal, state or local taxes as a result of a
prohibited transaction or prohibited contribution under the REMIC Provisions due
to the negligent performance by the Servicer of its duties and obligations set
forth herein, the Servicer shall indemnify the Holder of the related Residual
Certificate, the Master Servicer, the Trustee, the Securities Administrator, the
Trust Fund and the NIMS Insurer against any and all losses, claims, damages,
liabilities or expenses ("Losses") resulting from such negligence; provided,
however, that the Servicer shall not be liable for any such Losses attributable
to the action or inaction of the Trustee, the Depositor or the Holder of such
Residual Certificate, as applicable, nor for any such Losses resulting from
misinformation provided by the Holder of such Residual Certificate on which the
Servicer has relied. The foregoing shall not be deemed to limit or restrict the
rights and remedies of the Holder of such Residual Certificate, the Trustee and
the Trust Fund or the NIMS Insurer now or hereafter existing at law or in equity
or otherwise. Notwithstanding the foregoing, however, in no event shall the
Servicer have any liability (1) for any action or omission that is taken in
accordance with and in compliance with the express terms of, or which is
expressly permitted by the terms of, this Agreement, (2) for any Losses other
than arising out of a negligent performance by the Servicer of its duties and
obligations set forth herein, and (3) for any special or consequential damages
to Certificateholders (in addition to payment of principal and interest on the
Certificates).
-36-
ARTICLE VII.
THE SERVICER
Section 7.01 Merger or Consolidation of the Servicer.
The Servicer shall keep in full effect its existence, rights and
franchises as a corporation, and shall obtain and preserve its qualification to
do business as a foreign entity in each jurisdiction in which such qualification
is or shall be necessary to protect the validity and enforceability of this
Agreement or any of the Mortgage Loans and to perform its duties under this
Agreement.
Any Person into which the Servicer may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Servicer shall be a party, or any Person succeeding to the business of the
Servicer, shall, with the prior written consent of the Master Servicer and NIMS
Insurer be the successor of the Servicer hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding, provided, however, that the
successor or surviving Person shall be an institution (i) having a net worth of
not less than $25,000,000, and (ii) which is acceptable to the NIMS Insurer and
which is a Xxxxxx Xxx or Xxxxxxx Mac approved servicer in good standing.
Section 7.02 Limitation on Liability of the Servicer and Others.
Neither the Servicer nor any of the directors, officers, employees or
agents of the Servicer shall be under any liability to the Seller, the Master
Servicer, the NIMS Insurer, the Depositor or the Trustee 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 Servicer or any such person against any breach of
warranties or representations made herein, or failure to perform its obligations
in strict compliance with any standard of care set forth in this Agreement, or
any liability which would otherwise be imposed by reason of any breach of the
terms and conditions of this Agreement. The Servicer and any director, officer,
employee or agent of the Servicer 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 Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Mortgage Loans in accordance with this Agreement and which
in its opinion may involve it in any expense or liability, provided, however,
that the Servicer may, with the consent of the NIMS Insurer and the Master
Servicer, undertake any such action which it may deem necessary or desirable in
respect of this Agreement and the rights and duties of the parties hereto. In
such event, the Servicer shall be entitled to reimbursement from the Trust Fund
for the reasonable legal expenses and costs of such action.
Section 7.03 Limitation on Resignation and Assignment by the Servicer.
-37-
The Seller has entered into this Agreement with the Servicer in
reliance upon the independent status of the Servicer, and the representations as
to the adequacy of its servicing facilities, plant, personnel, records and
procedures, its integrity, reputation and financial standing, and the
continuance thereof. Therefore, the Servicer shall neither assign its rights
under this Agreement or the servicing hereunder nor delegate its duties
hereunder or any portion thereof, or sell or otherwise dispose of all or
substantially all of its property or assets without, in each case, the prior
written consent of the Seller, the Master Servicer and the NIMS Insurer, which
consent, in the case of an assignment of rights or delegation of duties, shall
be granted or withheld in the discretion of the Seller, the Master Servicer and
the NIMS Insurer, and which consent, in the case of a sale or disposition of all
or substantially all of the property or assets of the Servicer, shall not be
unreasonably withheld by any of them; provided, that in each case, there must be
delivered to the Seller, the Master Servicer, the Trustee and the NIMS Insurer a
letter from each Rating Agency to the effect that such transfer of servicing or
sale or disposition of assets will not result in a qualification, withdrawal or
downgrade of the then-current rating of any of the Certificates or the NIM
Securities to be issued in the NIMS Transaction. Notwithstanding the foregoing,
the Servicer, without the consent of the Seller, the Master Servicer, the
Trustee or the NIMS Insurer may retain third party contractors to perform
certain servicing and loan administration functions, including without
limitation, hazard insurance administration, tax payment and administration,
flood certification and administration, collection services and similar
functions; provided, that the retention of such contractors by Servicer shall
not limit the obligation of the Servicer to service the Mortgage Loans pursuant
to the terms and conditions of this Agreement.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Servicer, the Master Servicer and
the NIMS Insurer or upon the determination that its duties hereunder are no
longer permissible under applicable law and such incapacity cannot be cured by
the Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Seller, the Master Servicer, the Trustee and the NIMS Insurer, which Opinion of
Counsel shall be in form and substance acceptable to each of them. No such
resignation shall become effective until a successor shall have assumed the
Servicer's responsibilities and obligations hereunder in the manner provided in
Section 9.01.
Without in any way limiting the generality of this Section 7.03, in the
event that the Servicer either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its duties hereunder or any portion
thereof or sell or otherwise dispose of all or substantially all of its property
or assets, without the prior written consent of the Seller, the Master Servicer
and the NIMS Insurer, then such parties shall have the right to terminate this
Agreement upon notice given as set forth in Section 8.01, without any payment of
any penalty or damages and without any liability whatsoever to the Servicer or
any third party.
Section 7.04 Subservicing Agreements and Successor Subservicer.
(a) The Servicer may enter into subservicing agreements for
any servicing and administration of the Mortgage Loans with any institution
which (i) is an approved Xxxxxx Xxx or Xxxxxxx Mac Seller/Servicer as indicated
in writing, (ii) which represents and warrants that it is in compliance with the
laws of each state as necessary to enable it to perform its obligations under
such subservicing agreement and (iii) which is acceptable to the NIMS Insurer.
-38-
For this purpose, subservicing shall not be deemed to include the use of a tax
service, or services for reconveyance, insurance, property inspection or
brokering REO Property or the retention of third party contractors to perform
certain servicing and loan administration functions, including without
limitation, hazard insurance administration, tax payment and administration,
flood certification and administration, collection services and similar
functions. The Servicer shall give prior written notice to the Master Servicer
and the NIMS Insurer of the appointment of any subservicer and shall furnish to
the Master Servicer and the NIMS Insurer a copy of such subservicing agreement.
For purposes of this Agreement, the Servicer shall be deemed to have received
payments on Mortgage Loans immediately upon receipt by any subservicer of such
payments. Any such subservicing agreement shall be acceptable to the NIMS
Insurer and be consistent with and not violate the provisions of this Agreement.
Each subservicing agreement shall provide that a successor Servicer shall have
the option to terminate such agreement without payment of any fees if the
predecessor Servicer is terminated or resigns.
(b) The Servicer, with the prior written consent of the NIMS
Insurer, may terminate any subservicing agreement to which it is a party in
accordance with the terms and conditions of such subservicing agreement and
either itself directly service the related Mortgage Loans or enter into a
subservicing agreement with a successor subservicer that qualifies under Section
7.04(a).
(c) Notwithstanding any subservicing agreement or the
provisions of this Agreement relating to agreements or arrangements between the
Servicer and a subservicer or reference to actions taken through a subservicer
or otherwise, the Servicer shall remain obligated and primarily liable to the
Trustee, the Securities Administrator, the Master Servicer, the NIMS Insurer and
the Certificateholders for the servicing and administering of the Mortgage Loans
in accordance with the provisions hereof without diminution of such obligation
or liability by virtue of such subservicing agreements or arrangements or by
virtue of indemnification from the subservicer and to the same extent and under
the same terms and conditions as if the Servicer alone were servicing and
administering the Mortgage Loans. The Servicer shall be entitled to enter into
any agreement with a subservicer for indemnification of the Servicer by such
subservicer and nothing contained in this Agreement shall be deemed to limit or
modify such indemnification.
Section 7.05 Inspection.
The Servicer shall offer the Master Servicer and the NIMS
Insurer, upon reasonable advance notice, during normal business hours, access to
all records maintained by the Servicer in respect of its rights and obligations
hereunder and access to officers of the Servicer responsible for such
obligations. Upon request, the Servicer shall furnish to the Master Servicer and
the NIMS Insurer its most recent publicly available financial statements and
such other information relating to its capacity to perform its obligations under
this Agreement.
-39-
ARTICLE VIII.
TERMINATION
Section 8.01 Termination for Cause.
This Agreement shall be terminable at the option of the Seller or the
Master Servicer if any of the following events of default exist on the part of
the Servicer:
(i) any failure by the Servicer to remit to the Master
Servicer any payment required to be made under the terms of this Agreement which
continues unremedied for a period of two Business Days after the date upon which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Master Servicer or the NIMS Insurer; or
(ii) failure by the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Servicer set forth in this Agreement which continues unremedied for a period of
30 days; or
(iii) failure by the Servicer to maintain its license to do
business or service residential mortgage loans in any jurisdiction, if required
by such jurisdiction, where the Mortgaged Properties are located; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, including bankruptcy,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 days; or
(v) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of its property; or
(vi) the Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of any
applicable insolvency, bankruptcy or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its obligations
or cease its normal business operations for three Business Days; or
(vii) the Servicer ceases to meet the qualifications of a
Xxxxxx Xxx or Xxxxxxx Mac seller/servicer; or
(viii) the Servicer attempts to assign the servicing of the
Mortgage Loans or its right to servicing compensation hereunder or the Servicer
attempts to sell or otherwise dispose of all or substantially all of its
property or assets or to assign this Agreement or the servicing responsibilities
hereunder or to delegate its duties hereunder or any portion thereof (to other
than a third party in the case of outsourcing routine tasks including, but not
limited to, taxes, insurance, property inspection, reconveyance, collection or
brokering REO Property), in each case without complying fully with the
provisions of Section 7.03.
-40-
In each and every such case, so long as an event of default shall not
have been remedied within the applicable cure period, in addition to whatever
rights the Seller, the Master Servicer, the Trustee or the NIMS Insurer may have
at law or equity to damages, including injunctive relief and specific
performance, the Seller, the Master Servicer or the NIMS Insurer, by notice in
writing to the Servicer, may terminate all the rights and obligations of the
Servicer under this Agreement and in and to the servicing contract established
hereby and the proceeds thereof.
Upon receipt by the Servicer of such written notice, all authority and
power of the Servicer under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in a successor Servicer
appointed by the Master Servicer with the consent of the other party and the
NIMS Insurer. Upon written request from the Master Servicer, the Servicer shall
prepare, execute and deliver to the successor entity designated by the Master
Servicer 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, including but not limited to the transfer and endorsement or
assignment of the Mortgage Loans and related documents, at the Servicer's sole
expense. The Servicer shall cooperate with the Seller, the Master Servicer the
NIMS Insurer, the Trustee and such successor servicer in effecting the
termination of the Servicer's responsibilities and rights hereunder, 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 Servicer to the
Custodial Account or Escrow Account or thereafter received with respect to the
Mortgage Loans.
By a written notice, the Seller or the Master Servicer with the consent
of the other parties and the NIMS Insurer may waive any default by the Servicer
in the performance of its obligations hereunder and its consequences. Upon any
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
Upon a termination for cause pursuant to Section 8.01, all unreimbursed
Servicing Fees, Servicing Advances and Monthly Advances still owing the Servicer
shall be paid by the Trust Fund as such amounts are received from the related
Mortgage Loans.
Section 8.02 Termination Without Cause.
(a) This Agreement shall terminate upon: (i) the later of (a) the
distribution of the final payment or liquidation proceeds on the last Mortgage
Loan to the Master Servicer (or advances by the Servicer for the same), and (b)
the disposition of all REO Property acquired upon foreclosure of the last
Mortgage Loan and the remittance of all funds due hereunder, (ii) mutual consent
of the Servicer, the Seller and the Master Servicer in writing provided such
termination is also acceptable to the Rating Agencies and the NIMS Insurer or
(iii) with the prior written consent of the Master Servicer and the NIMS Insurer
at the discretion of the Seller. Any such termination pursuant to clause (iii)
above shall be with 30 days' prior notice, in writing and delivered to the
Master Servicer, the NIMS Insurer and the Servicer by registered mail to the
addresses set forth in Section 9.03 of this Agreement. The Servicer shall comply
with the termination procedures set forth in Sections 7.03, 8.01 and 9.01
hereof. Neither the Master Servicer nor the NIMS Insurer shall have the right to
terminate the Servicer pursuant to clause (iii) of this Section 8.02(a). In
connection with a termination by the Seller pursuant to clause (iii) of this
Section 8.02(a), the Servicer shall be reimbursed by the Seller for all
unreimbursed out-of-pocket Servicing Advances, Monthly Advances and Servicing
Fees and other reasonable and necessary out-of-pocket costs associated with any
transfer of servicing at the time of such transfer of servicing. All invoices
received by the Servicer after termination will be forwarded to the Seller or
the successor servicer for payment within thirty (30) days of receipt from the
Servicer.
-41-
(b) In the event that the Servicer decides to terminate its obligations
under this Agreement as set forth in clause (ii) of Section 8.02(a), the
Servicer agrees that it will continue to service the Mortgage Loans beyond the
prescribed termination date until such time as the Master Servicer, using
reasonable commercial efforts, is able to appoint a successor servicer
acceptable to the NIMS Insurer and otherwise meeting the characteristics of
Sections 7.01 and 9.01.
ARTICLE IX.
MISCELLANEOUS PROVISIONS
Section 9.01 Successor to the Servicer.
Simultaneously with the termination of the Servicer's responsibilities
and duties under this Agreement (a) pursuant to Sections 6.02, 7.03, 8.01 or
8.02(a)(ii), the Master Servicer shall (i) within 90 days of the Servicer's
notice of such termination, succeed to and assume all of the Servicer's
responsibilities, rights, duties and obligations under this Agreement, or (ii)
appoint a successor having the characteristics set forth in clauses (i) and (ii)
of Section 7.01 and which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Servicer under this Agreement
simultaneously with the termination of the Servicer's responsibilities, duties
and liabilities under this Agreement; or (b) pursuant to a termination under
Section 8.02(a)(iii), the Seller shall appoint a successor having the
characteristics set forth in clauses (i) and (ii) of Section 7.01 and which
shall succeed to all rights and assume all of the responsibilities, duties and
liabilities of the Servicer under this Agreement simultaneously with the
termination of the Servicer's responsibilities, duties and liabilities under
this Agreement. Any successor to the Servicer shall be subject to the approval
of the Master Servicer and, the NIMS Insurer shall be a member in good standing
of the MERS system (if any of the Mortgage Loans are MERS Eligible Mortgage
Loans, unless such Mortgage Loans are withdrawn from MERS and Assignments of
Mortgage are recorded in favor of the Trustee at the expense of the successor
Servicer). Any approval of a successor servicer by the Master Servicer and the
NIMS Insurer shall, if the successor servicer is not at that time a servicer of
other Mortgage Loans for the Trust Fund, be conditioned upon the receipt by the
Master Servicer, the NIMS Insurer, the Seller and the Trustee of a letter from
each Rating Agency 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 or the NIM Securities to be issued in the NIMS Transaction. In
connection with such appointment and assumption, the Master Servicer or the
Seller, as applicable, may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree, provided, however, that no such compensation shall be in excess of that
permitted the Servicer under this Agreement. In the event that the Servicer's
duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned sections, the Servicer 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 Servicer pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this Section 9.01 and
shall in no event relieve the Servicer of the representations and warranties
made pursuant to Sections 6.01 and the remedies available to the Master
Servicer, the Trustee, the NIMS Insurer and the Seller under Sections 6.02, 6.03
and 6.04, it being understood and agreed that the provisions of such Sections
6.01, 6.02, 6.03 and 6.04 shall be applicable to the Servicer notwithstanding
any such resignation or termination of the Servicer, or the termination of this
Agreement. Neither the Master Servicer, in its capacity as successor servicer,
nor any other successor servicer, shall be responsible for the lack of
information and/or documents that are not transferred to it by the Servicer and
that it cannot otherwise obtain through reasonable efforts.
-42-
Within a reasonable period of time, but in no event longer than 30 days
of the appointment of a successor entity, the Servicer 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, including but not limited to the transfer and
endorsement of the Mortgage Notes and related documents, and the preparation and
recordation of Assignments of Mortgage. The Servicer shall cooperate with the
Trustee, the Master Servicer or the Seller, as applicable, and such successor in
effecting the termination of the Servicer'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 Servicer to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
-43-
Any successor appointed as provided herein shall execute, acknowledge
and deliver to the Servicer, the Master Servicer, the NIMS Insurer and the
Seller an instrument (i) accepting such appointment, wherein the successor shall
make the representations and warranties set forth in Section 6.01 (including a
representation that the successor servicer is a member of MERS, unless none of
the Mortgage Loans are MERS Mortgage Loans or MERS Eligible Mortgage Loans or
any such Mortgage Loans have been withdrawn from MERS and Assignments of
Mortgage are recorded in favor of the Trustee) and provide for the same remedies
set forth in Sections 6.02, 6.03 and 6.04 herein and (ii) an assumption of the
due and punctual performance and observance of each covenant and condition to be
performed and observed by the Servicer under this Agreement, whereupon such
successor shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer, with like effect
as if originally named as a party to this Agreement. Any termination or
resignation of the Servicer or termination of this Agreement pursuant to
Sections 6.02, 7.03, 8.01 or 8.02 shall not affect any claims that the Seller,
the Master Servicer, the NIMS Insurer or the Trustee may have against the
Servicer arising out of the Servicer's actions or failure to act prior to any
such termination or resignation. In addition, in the event any successor
servicer is appointed pursuant to Section 8.02(a)(iii) of this Agreement, such
successor servicer must satisfy the conditions relating to the transfer of
servicing set forth in the Trust Agreement.
The Servicer shall deliver promptly to the successor servicer the funds
in the Custodial Account and Escrow Account and all Mortgage Loan documents and
related documents and statements held by it hereunder and the Servicer 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 Servicer.
Upon a successor's acceptance of appointment as such, the Servicer
shall notify the Seller, the Master Servicer, the NIMS Insurer and the Depositor
of such appointment in accordance with the procedures set forth in Section 9.03.
Section 9.02 Costs.
The Seller shall pay the legal fees and expenses of its attorneys.
Costs and expenses incurred in connection with the transfer of the servicing
responsibilities, including fees for delivering Servicing Files, shall be paid
by the Seller. Subject to Sections 2.02 and 3.01(a), the Seller, on behalf of
the Depositor, shall pay the costs associated with the preparation, delivery and
recording of Assignments of Mortgages.
Section 9.03 Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if sent by facsimile or mailed by
overnight courier, addressed as follows (or such other address as may hereafter
be furnished to the other party by like notice):
-44-
(i) if to the Seller:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Contract Finance - SARM 2004-7
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(ii) if to the Servicer:
Aurora Loan Services Inc.
00000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: President
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with a copy to:
Aurora Loan Services Inc.
000 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Manager, Loan Administration
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(iii) if to the Master Servicer:
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Executive Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(iv) if to the Trustee:
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-45-
Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee.
Section 9.04 Severability Clause.
Any part, provision, representation or warranty of this Agreement which
is prohibited or which is held to be void or unenforceable shall be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or warranty of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is as close as possible to the economic effect of this Agreement
without regard to such invalidity.
Section 9.05 No Personal Solicitation.
From and after the Closing Date, the Servicer hereby agrees that it
will not take any action or permit or cause any action to be taken by any of its
agents or affiliates, or by any independent contractors on the Servicer's
behalf, to personally, by telephone or mail, solicit the borrower or obligor
under any Mortgage Loan (on a targeted basis) for any purposes of prepayment,
refinancing or modification of the related Mortgage Loan, provided, however,
that this limitation shall not prohibit Servicer from soliciting such Mortgagor
for purposes of prepayment, refinance or modification of any loan owned or
serviced by Servicer other than a Mortgage Loan. It is understood and agreed
that, among other marketing activities, promotions undertaken by Servicer which
are directed of the general public at large or which are directed generally to a
segment of the then existing customers of Servicer or any of its direct or
indirect subsidiaries (including, without limitation, the mailing of promotional
materials to Servicer's deposit customers by inserting such materials into
customer account statements, mass mailings based on commercially acquired
mailing lists and newspaper, radio and television advertisements) shall not
constitute solicitation under this section. In the event the Servicer does
refinance any Mortgage Loan as a result of a violation of the requirements set
forth in this Section 9.05, Servicer hereby agrees to pay to the Trust Fund an
amount equal to the difference, if any, between the amount that the Trust Fund
would have received if it had sold the Mortgage Loan to a third party, and the
proceeds received by the Trust Fund as a result of such refinancing.
Section 9.06 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
-46-
Section 9.07 Place of Delivery and Governing Law.
This Agreement shall be deemed in effect when a fully executed
counterpart thereof is received by the Seller in the State of New York and shall
be deemed to have been made in the State of New York. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.08 Further Agreements.
The Seller, the Master Servicer and the Servicer each agree to execute
and deliver to the other such reasonable and appropriate additional documents,
instruments or agreements as may be necessary or appropriate to effectuate the
purposes of this Agreement.
Section 9.09 Intention of the Parties.
It is the intention of the parties that the Seller is conveying, and
the Servicer is receiving only a contract for servicing the Mortgage Loans.
Accordingly, the parties hereby acknowledge that the Trust Fund remains the sole
and absolute owner of the Mortgage Loans and all rights (other than the
servicing rights) related thereto.
Section 9.10 Successors and Assigns; Assignment of Servicing Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Servicer, the Seller, the Trustee, the NIMS Insurer and the
Master Servicer and their respective successors and assigns. This Agreement
shall not be assigned, pledged or hypothecated by the Servicer to a third party
except in accordance with Section 7.03 and shall not be assigned, pledged or
hypothecated by the Seller, as applicable, without the consent of the NIMS
Insurer except as and to the extent provided in Section 9.11.
Section 9.11 Assignment by the Seller.
The Seller shall have the right, upon notice to but without the consent
of the Servicer, to assign, in whole or in part (but exclusive of such Seller's
rights as owner of the servicing rights relating to the Mortgage Loans), its
interest under this Agreement to the Depositor, which in turn shall assign such
rights to the Trustee, and the Trustee then shall succeed to all rights of such
Seller under this Agreement. All references to the Seller in this Agreement
shall be deemed to include its assignee or designee and any subsequent assignee
or designee, specifically including the Trustee, except with respect to the
Seller's retained servicing rights pursuant to Section 8.02(a)(iii).
The Seller shall have the right, upon notice to but without the consent
of the Servicer, to assign, in whole or in part, its retained servicing rights.
All references to the Seller in this Agreement, in its capacity as an owner of
servicing rights, shall be deemed to include the assignee or designee and any
subsequent assignee or designee, of such Seller's rights arising pursuant to
Section 8.02(a)(iii).
-47-
Section 9.12 Amendment
This Agreement may be amended from time to time by the written
agreement signed by the Master Servicer, the Seller and the Servicer with the
consent of the NIMS Insurer, provided that the party requesting such amendment
shall, at its own expense, provide the Trustee, the NIMS Insurer, the Master
Servicer and the Seller with an Opinion of Counsel that such amendment will not
materially adversely affect the interest of the Certificateholders in the
Mortgage Loans or the NIM Securities to be issued in the NIMS Transaction. Any
such amendment shall be deemed not to adversely affect in any material respect
any the interest of the Certificateholders in the Mortgage Loans or the NIM
Securities to be issued in the NIMS Transaction, if the Trustee receives written
confirmation from each Rating Agency that such amendment will not cause such
Rating Agency to reduce, qualify or withdraw the then current rating assigned to
the Certificates and the NIM Securities (and any Opinion of Counsel received by
the Trustee, the NIMS Insurer, the Master Servicer and the Seller in connection
with any such amendment may rely expressly on such confirmation as the basis
therefore).
Section 9.13 Waivers.
No term or provision of this Agreement may be waived or modified unless
such waiver or modification is in writing and signed by the party against whom
such waiver or modification is sought to be enforced and is consented to by the
NIMS Insurer.
Section 9.14 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
Section 9.15 Intended Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary, the parties to
this Agreement agree that it is appropriate, in furtherance of the intent of
such parties as set forth herein, that the Trustee and the NIMS Insurer receive
the benefit of the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such provisions. The Servicer
shall have the same obligations to the Trustee and the NIMS Insurer as if they
were parties to this Agreement, and the Trustee (acting through the Master
Servicer) and the NIMS Insurer shall have the same rights and remedies to
enforce the provisions of this Agreement as if they were parties to this
Agreement. The Servicer shall only take direction from the Master Servicer (if
direction by the Master Servicer is required under this Agreement) unless
otherwise directed by this Agreement or the Credit Risk Management Agreement.
Notwithstanding the foregoing, all rights of the Trustee hereunder and all
rights and obligations of the Master Servicer hereunder (other than the right to
indemnification) shall terminate upon the termination of the Trust Fund pursuant
to the Trust Agreement and all rights of the NIMS Insurer set forth in this
Agreement (other than the right of indemnification) shall exist only so long as
the NIM Securities issued pursuant to the NIMS Transaction remain outstanding or
the NIMS Insurer is owed amounts in respect of its guarantee of payment on such
NIM Securities.
-48-
Section 9.16 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular, and the
use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) a reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean by reason of
enumeration.
Section 9.17 Reproduction of Documents.
This Agreement and all documents relating thereto, including, without
limitation, (i) consents, waivers and modifications which may hereafter be
executed, (ii) documents received by any party at the closing, and (iii)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 9.18 Protection of Confidential Information.
The Servicer shall keep confidential and shall not divulge to any
party, without the Seller's prior written consent, any nonpublic information
pertaining to the Mortgage Loans or any borrower thereunder, except to the
extent that it is appropriate for the Servicer to do so in working with legal
counsel, auditors, taxing authorities or other governmental agencies or it is
otherwise in accordance with Accepted Servicing Practices.
-49-
IN WITNESS WHEREOF, the Servicer, the Seller and the Master Servicer
have caused their names to be signed hereto by their respective officers
thereunto duly authorized as of the date first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By:
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Authorized Signatory
AURORA LOAN SERVICES INC.,
as Servicer
By:
---------------------------------------
Name: Xxx X. Xxxxxxxx, Xx.
Title: Senior Vice President
AURORA LOAN SERVICES INC.,
as Master Servicer
By:
---------------------------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
ACKNOWLEDGED BY:
Xxxxx Fargo Bank, National Association,
as Trustee
By:
--------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
EXHIBIT B
CUSTODIAL ACCOUNT CERTIFICATION NOTICE
_________, 20__
To:
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: E. Xxxx Xxxxxxxxxx
(SARM 2004-7)
As Servicer under the Servicing Agreement, dated as of May 1, 2004
among Aurora Loan Services Inc., as Servicer, Xxxxxx Brothers Holdings Inc., as
Seller and you, as Master Servicer (the "Agreement"), we hereby certify to you
that we have established an account at [insert name of financial institution],
as a Custodial Account pursuant to Section 3.03 of the Agreement, to be
designated as "Aurora Loan Services Inc., in trust for Xxxxx Fargo Bank,
National Association, as Trustee for Structured Adjustable Rate Mortgage Loan
Trust, 2004-7." All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Servicer.
AURORA LOAN SERVICES INC.
By:
----------------------------------
Name:
Title:
EXHIBIT C
ESCROW ACCOUNT CERTIFICATION NOTICE
_______ __, 20__
To:
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: E. Xxxx Xxxxxxxxxx
(SARM 2004-7)
As Servicer under the Servicing Agreement, dated as of May 1, 2004
among Aurora Loan Services Inc., as Servicer, Xxxxxx Brothers Holdings Inc., as
Seller and you, as Master Servicer (the "Agreement"), we hereby certify to you
that we have established an account at [insert name of financial institution],
as an Escrow Account pursuant to Section 3.05 of the Agreement, to be designated
as "Aurora Loan Services Inc., in trust for Xxxxx Fargo Bank, National
Association, as Trustee for Structured Adjustable Rate Mortgage Loan Trust,
2004-7." All deposits in the account shall be subject to withdrawal therefrom by
order signed by the Servicer.
AURORA LOAN SERVICES INC.
By:
----------------------------------
Name:
Title:
C-1
EXHIBIT D-1
Aurora Loan Services Inc. Master Servicing Default Reporting
DATA FIELD REQUIREMENTS
Data must be submitted to the Master Servicer in an Excel spreadsheet format
with fixed field names and data type. The Excel spreadsheet should be used as a
template every month when submitting data.
Table: Delinquency
Name Type Character Size
---- ---- --------------
Servicer Loan # Number (Double) 10
Investor Loan # Number (Double) 10
Servicer Investor # Text 3
Borrower Name Text 20
Xxxxxxx Xxxx 00
Xxxxx Xxxx 0
Xxx Xxxx 10
Due Date Date/Time 8
Status Code ("Man Code") Text 1
File Referred to Attorney Date/Time 8
1st Legal Date/Time 8
Actual Sale Date Date/Time 8
Loss Mit Approval Date Date/Time 8
Loss Mit Type Text 5
Loss Mit Estimated Completion Date Date/Time 8
Loss Mit Broken Plan Date Date/Time 8
BK Chapter Text 6
BK Filed Date Date/Time 8
Post Petition Due Date/Time 8
Motion for Relief Date/Time 8
Lift of Stay Date/Time 8
Reason For Delinquency Text 10
Eviction Date Date/Time 8
List Price Currency 8
List Date Date/Time 8
Accepted Offer Price Currency 8
Accepted Offer Date Date/Time 8
Estimated REO Closing Date Date/Time 8
Actual REO Sale Date Date/Time 8
BK Discharge/Dismissal Date Date/Time 8
BK Hearing Date Date/Time 8
POC Date Date/Time 8
BK Case Number Text 30 Maximum
F/C Sale Amount Currency 8
D-1-1
Redemption Exp. Date Date/Time 8
Property Value Date Date/Time 8
Current Property Value Currency 8
MI Cancellation Date Date/Time 8
MI Claim Filed Date Date/Time 8
MI Claim Amount Currency 8
MI Claim Reject Date Date/Time 8
MI Claim Resubmit Date Date/Time 8
MI Claim Paid Date Date/Time 8
MI Claim Amount Paid Currency 8
Pool Claim Filed Date Date/Time 8
Pool Claim Amount Currency 8
Pool Claim Reject Date Date/Time 8
Pool Claim Paid Date Date/Time 8
Pool Claim Amount Paid Currency 8
Pool Claim Resubmit Date Date/Time 8
FHA Part A Claim Filed Date Date/Time 8
FHA Part A Claim Amount Currency 8
FHA Part A Claim Paid Date Date/Time 8
FHA Part A Claim Paid Amount Currency 8
FHA Part B Claim Filed Date Date/Time 8
FHA Part B Claim Amount Currency 8
FHA Part B Paid Date Date/Time 8
FHA Part B Claim Paid Amount Currency 8
V A Claim Filed Date Date/Time 8
V A Claim Paid Date Date/Time 8
V A Claim Paid Amount Currency 8
The Status Code Field should show ALS' applicable Man code as used by ALS from
time-to-time for action being taken.
X-0-0
00
XXXX 0000-0
Xxxxxx Servicing Agreement
X-0-0
XXXXXXX X-0
XXXXXXXX XXXXXX
XXXXX NAME DESCRIPTION FORMAT
---------- ----------- ------
INVNUM INVESTOR LOAN NUMBER Number no decimals
SERVNUM SERVICER LOAN NUMBER, REQUIRED Number no decimals
BEGSCHEDBAL BEGINNING SCHEDULED BALANCE FOR SCHED/SCHED Number two decimals
BEGINNING TRAIL BALANCE FOR ACTUAL/ACTUAL,
REQUIRED
SCHEDPRIN SCHEDULED PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED Number two decimals
ACTUAL PRINCIPAL COLLECTED FOR ACTUAL/ACTUAL,
REQUIRED, .00 IF NO COLLECTIONS
CURT1 CURTAILMENT 1 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT1DATE CURTAILMENT 1 DATE, BLANK IF NOT APPLICABLE
DD-MMM-YY
CURT1ADJ CURTAILMENT 1 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
CURT2 CURTAILMENT 2 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT2DATE CURTAILMENT 2 DATE, BLANK IF NOT APPLICABLE
DD-MMM-YY
CURT2ADJ CURTAILMENT 2 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
LIQPRIN PAYOFF, LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
OTHPRIN OTHER PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
PRINREMIT TOTAL PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
INTREMIT NET INTEREST REMIT, INCLUDE PAYOFF INTEREST, Number two decimals
.00 IF NOT APPLICABLE
TOTREMIT TOTAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
ENDSCHEDBAL ENDING SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED Number two decimals
ENDING TRIAL BALANCE FOR ACTUAL/ACTUAL
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDACTBAL ENDING TRIAL BALANCE Number two decimals
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDDUEDATE ENDING ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT
DD-MMM-YY
ACTCODE 60 IF PAIDOFF, BLANK IF NOT APPLICABLE Number
no decimals
ACTDATE ACTUAL PAYOFF DATE, BLANK IF NOT APPLICABLE
DD-MMM-YY
INTRATE INTEREST RATE, REQUIRED Number seven decimals
Example .0700000 for 7.00%
SFRATE SERVICE FEE RATE, REQUIRED Numberseven 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
D-2-1
EXHIBIT E
FORM OF CERTIFICATION TO BE PROVIDED TO THE DEPOSITOR, THE TRUSTEE AND
THE MASTER SERVICER BY THE SERVICER
[Date]
Structured Asset Securities Corporation
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage Finance SARM 2004-7
[__________]
Attention: [_________]
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx
Attn: E. Xxxx Xxxxxxxxxx
Reference is made to the Servicing Agreement dated as of May 1, 2004
(the "Agreement"), by and among Xxxxxx Brothers Holdings Inc., Aurora Loan
Services, Inc. (the "Servicer," in such capacity and the "Master Servicer," in
such capacity), and acknowledged by Xxxxx Fargo Bank, National Association, as
Trustee (the "Trustee"). I, [identify the certifying individual], a [title] of
the Servicer, hereby certify to the Trustee, 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, as of the date of this
certification, fulfilled its obligations under this Agreement.
D-2-1
AURORA LOAN SERVICES INC.
By:
-----------------------------------
Name:
Title:
EXHIBIT F
ASSIGNMENT AND ASSUMPTION AGREEMENT
[INTENTIONALLY OMITTED]
G-1
