EXHIBIT 99.2
EXECUTION
================================================================================
AURORA LOAN SERVICES INC.,
as Servicer
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
and
AURORA LOAN SERVICES INC.
as Master Servicer
-----------------------------
Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2004-5H
SERVICING AGREEMENT
Dated as of January 1, 2004
-----------------------------
================================================================================
Table of Contents
-----------------
Page
ARTICLE I.
DEFINITIONS
ARTICLE II.
SELLER'S ENGAGEMENT OF SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Servicing Files........11
Section 2.02 Books and Records............................................12
ARTICLE III.
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Servicer to Service..........................................13
Section 3.02 Collection of Mortgage Loan Payments.........................15
Section 3.03 Establishment of and Deposits to Custodial Account...........15
Section 3.04 Permitted Withdrawals From Custodial Account.................16
Section 3.05 Establishment of and Deposits to Escrow Account..............17
Section 3.06 Permitted Withdrawals From Escrow Account....................18
Section 3.07 Maintenance of PMI Policy and/or LPMI Policy; Claims.........19
Section 3.08 Fidelity Bond and Errors and Omissions Insurance.............20
Section 3.09 Notification of Adjustments..................................20
Section 3.10 Completion and Recordation of Assignments of Mortgage........21
Section 3.11 Protection of Accounts.......................................21
Section 3.12 Payment of Taxes, Insurance and Other Charges................21
Section 3.13 Maintenance of Hazard Insurance..............................22
Section 3.14 Maintenance of Mortgage Blanket Insurance....................22
Section 3.15 Restoration of Mortgaged Property............................23
Section 3.16 Title, Management and Disposition of REO Property............23
Section 3.17 Real Estate Owned Reports....................................26
Section 3.18 MERS.........................................................26
Section 3.19 Waiver of Prepayment Penalty Amounts.........................26
ARTICLE IV.
PAYMENTS TO MASTER SERVICER
Section 4.01 Remittances..................................................27
Section 4.02 Statements to Master Servicer................................28
Section 4.03 Monthly Advances by Servicer.................................29
ARTICLE V.
GENERAL SERVICING PROCEDURES
Section 5.01 Servicing Compensation.......................................29
Section 5.02 Annual Audit Report..........................................30
Section 5.03 Annual Officer's Certificate.................................30
Section 5.04 Transfers of Mortgaged Property..............................31
-i-
ARTICLE VI.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
Section 6.01 Representations, Warranties and Agreements of the
Servicer.....................................................32
Section 6.02 Remedies for Breach of Representations and Warranties of
the Servicer.................................................33
Section 6.03 Additional Indemnification by the Servicer; Third Party
Claims.......................................................34
ARTICLE VII.
THE SERVICER
Section 7.01 Merger or Consolidation of the Servicer......................35
Section 7.02 Limitation on Liability of the Servicer and Others...........35
Section 7.03 Limitation on Resignation and Assignment by the Servicer.....35
Section 7.04 Subservicing Agreements and Successor Subservicer............36
ARTICLE VIII.
TERMINATION
Section 8.01 Termination for Cause........................................37
Section 8.02 Termination Without Cause....................................39
ARTICLE IX.
MISCELLANEOUS PROVISIONS
Section 9.01 Successor to the Servicer....................................39
Section 9.02 Costs........................................................41
Section 9.03 Notices......................................................41
Section 9.04 Severability Clause..........................................43
Section 9.05 No Personal Solicitation.....................................43
Section 9.06 Counterparts.................................................44
Section 9.07 Place of Delivery and Governing Law..........................44
Section 9.08 Further Agreements...........................................44
Section 9.09 Intention of the Parties.....................................44
Section 9.10 Successors and Assigns; Assignment of Servicing
Agreement....................................................44
Section 9.11 Assignment by the Seller.....................................44
Section 9.12 Waivers......................................................45
Section 9.13 Exhibits.....................................................45
Section 9.14 General Interpretive Principles..............................45
Section 9.15 Reproduction of Documents....................................45
-ii-
EXHIBITS & SCHEDULES
EXHIBIT A Mortgage Loan Schedule
EXHIBIT B Custodial Account Certification
EXHIBIT C Escrow Account Certification
EXHIBIT D Form of Certification to be Provided to the Depositor, the
Trustee And the Master Servicer by the Servicer
-iii-
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement"), entered into as of the 1st
day of January, 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 Citibank, N.A.,
as trustee (the "Trustee"), under a trust agreement dated as of January 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 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:
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 such 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 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.
-2-
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.
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, New York or the city in
which the corporate trust office of the Trustee is located are authorized or
obliged by executive order to be closed.
Certificates: Any or all of the Certificates issued pursuant to the Trust
Agreement.
Closing Date: January 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
January 1, 2004.
Custodians: Xxxxx Fargo Bank, National Association and U.S. Bank, National
Association and their respective successors.
Cut-off Date: January 1, 2004.
Depositor: Structured Asset Securities Corporation, or any successor in
interest.
-3-
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 Investments: Any one or more of the obligations and securities
listed below which investment provides for a date of maturity not later than the
Determination Date in each month:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America or any
agency or instrumentality of the United States of America the obligations of
which are backed by the full faith and credit of the United States of America
("Direct Obligations");
(ii) federal funds, or demand and time deposits in, certificates of
deposits of, or bankers' acceptances issued by, any depository institution or
trust company (including U.S. subsidiaries of foreign depositories and the
Trustee or any agent of the Trustee, acting in its respective commercial
capacity) incorporated or organized under the laws of the United States of
America or any state thereof and subject to supervision and examination by
federal or state banking authorities, so long as at the time of investment or
the contractual commitment providing for such investment the commercial paper or
other short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution or trust company which is
the principal subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company or deposit
institution, as the case may be) have been rated by each Rating Agency in its
highest short-term rating category or one of its two highest long-term rating
categories;
(iii) repurchase agreements collateralized by Direct Obligations or
securities guaranteed by Xxxxxx Xxx, Xxxxxx Xxx or Xxxxxxx Mac with any
registered broker/dealer subject to Securities Investors' Protection Corporation
jurisdiction or any commercial bank insured by the FDIC, if such broker/dealer
or bank has an uninsured, unsecured and unguaranteed obligation rated by each
Rating Agency in its highest short-term rating category;
(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
-4-
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 would not
adversely affect the then current rating by any Rating Agency of any of the
Certificates. Such investments in this subsection (viii) may include money
market mutual funds or common trust funds, including any fund for which the
Trustee, the Master Servicer or an affiliate thereof serves as an investment
advisor, administrator, shareholder servicing agent, and/or custodian or
subcustodian, notwithstanding that (x) the Trustee, the Master Servicer or an
affiliate thereof charges and collects fees and expenses from such funds for
services rendered, (y) the Trustee, the Master Servicer or an affiliate thereof
charges and collects fees and expenses for services rendered pursuant to this
Agreement, and (z) services performed for such funds and pursuant to this
Agreement may converge at any time.
provided, however, that no such instrument shall be an Eligible Investment
if such instrument evidences either (i) a right to receive only interest
payments with respect to the obligations underlying such instrument, or (ii)
both principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations.
Errors and Omissions Insurance: Errors and Omissions Insurance to be
maintained by the Servicer in accordance with the Xxxxxx Mae 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
-5-
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 Xxx: 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.
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.
-6-
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 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 Impairment Insurance Policy: A mortgage impairment or blanket
hazard insurance policy as described in the Xxxxxx Mae Guides.
Mortgage Interest Rate: The annual rate of interest borne on a Mortgage
Note, after giving effect to any applicable Relief Act Reduction.
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.
-7-
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.
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, 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.
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
-8-
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.
Qualified Depository: Any of (i) a federal or state-chartered depository
institution the accounts of which are insured by the FDIC and whose commercial
paper, short-term debt obligations or other short-term deposits are rated at
least "A-1+" by S&P if the deposits are to be held in the account for less than
30 days, or whose long-term unsecured debt obligations are rated at least "AA-"
by S&P if the deposits are to be held in the account for more than 30 days, or
(ii) the corporate trust department of a federal or state-chartered depository
institution subject to regulations regarding fiduciary funds on deposit similar
to Title 12 of the Code of Federal Regulations Section 9.10(b), which, in either
case, has corporate trust powers, acting in its fiduciary capacity, or (iii) the
Bank.
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 Xxxxx'x and S&P.
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
-9-
Soldiers' and Sailors' Civil Relief Act of 1940, 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.
Retained Interest: The meaning set forth in the Trust Agreement.
Retained Interest Holder: The meaning set forth in the Trust Agreement.
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 Section 3.02 of
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
-10-
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 January 1, 2004, among
the Trustee, the Master Servicer and the Depositor.
Trustee: Citibank, N.A. 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
-11-
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.
(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 in 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),
-12-
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.
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.
-13-
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
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. Notwithstanding anything contained
herein to the contrary, the Servicer shall not, without the Trustee's written
consent: (i) initiate any action, suit or proceeding solely under the Trustee's
name without indicating the Servicer's representative capacity; or (ii) take any
action with the intent to cause, and that actually causes the Trustee to be
registered to do business in any state. 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
-14-
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 established with a Qualified
Depository. 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, upon request, to
any subsequent owner of the Mortgage Loans.
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 Closing Date 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
-15-
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.
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;
-16-
(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 Qualified Depository 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;
(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 expenses incurred or reimbursable to the
Servicer pursuant to Sections 3.12 and 6.03 to the extent not previously
reimbursed under clause (ix) of this Section 3.04; and
(xi) 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
-17-
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. The Escrow Accounts shall be established with a Qualified Depository
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, 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.
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.
-18-
(v) for application to restoration or repair of the Mortgaged
Property in accordance with the Xxxxxx Mae 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.
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
-19-
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.
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 Xxx or Xxxxxxx Mac seller-servicer. 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 a copy of each
such bond and insurance policy if (i) the Master Servicer so requests 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.
-20-
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 the Custodial Account or the Escrow Account to a
different Qualified Depository from time to time. Such transfer shall be made
only upon obtaining the consent of the Master Servicer, which consent shall not
be withheld unreasonably.
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; provided that in
the event that amounts on deposit in the Custodial Account or the Escrow Account
exceed the amount fully insured by the FDIC (the "Insured Amount") the Servicer
shall be obligated to invest the excess amount over the Insured Amount in
Eligible Investments on the same Business Day as such excess amount becomes
present in the Custodial Account or the Escrow Account. 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 a Qualified Depository (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
-21-
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
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.
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 3.12 and otherwise complies
with all other requirements of Section 3.12, it shall
-22-
conclusively be deemed to have satisfied its obligations as set forth in Section
3.12. 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
3.12, 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:
(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 its nominee (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 (with a copy delivered to the Trustee) 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
-23-
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, by telecopy and
telephone, of the proposed discounted payoff or chargeoff. The Master Servicer
shall be deemed to have approved the discounted payoff or chargeoff of any
Mortgage Loan unless the Master Servicer 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.
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
Trustee or the Master Servicer otherwise requests, an environmental inspection
or review of such Mortgaged Property to be conducted by a qualified inspector
shall be arranged by the Servicer. Upon completion of the inspection, the
Servicer shall provide the Trustee and the Master Servicer with a written report
of such environmental inspection. In the event that the environmental inspection
report indicates that the Mortgaged Property is contaminated by hazardous or
toxic substances or wastes, the 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, proceed
with foreclosure or acceptance of a deed in lieu of foreclosure. In such
instance, the Master Servicer shall be deemed to have approved such foreclosure
or acceptance of a deed in lieu of foreclosure unless the Master Servicer
notifies the 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.
In the event that the Trust Fund acquires any REO Property in connection
with a default or imminent default on a Mortgage Loan, the Servicer shall
dispose of such REO Property not later than the end of the third taxable year
after the year of its acquisition by the Trust Fund unless the Servicer has
applied for and received a grant of extension from the Internal Revenue
-24-
Service to the effect that, under the REMIC Provisions and any relevant proposed
legislation and under applicable state law, the applicable Trust REMIC may hold
REO Property for a longer period without adversely affecting the REMIC status of
such REMIC or causing the imposition of a federal or state tax upon such REMIC.
If the Servicer has received such an extension, then the Servicer shall continue
to attempt to sell the REO Property for its fair market value for such period
longer than three years as such extension permits (the "Extended Period"). If
the Servicer has not received such an extension and the Servicer is unable to
sell the REO Property within the period ending 3 months before the end of such
third taxable year after its acquisition by the Trust Fund or if the Servicer
has received such an extension, and the Servicer is unable to sell the REO
Property within the period ending three months before the close of the Extended
Period, the Servicer shall, before the end of the three-year period or the
Extended Period, as applicable, (i) purchase such REO Property at a price equal
to the REO Property's fair market value or (ii) auction the REO Property to the
highest bidder (which may be the Servicer) in an auction reasonably designed to
produce a fair price prior to the expiration of the three-year period or the
Extended Period, as the case may be. The Trustee shall sign any document or take
any other action reasonably requested by the Servicer which would enable the
Servicer, on behalf of the Trust Fund, to request such grant of extension.
Notwithstanding any other provisions of this Agreement, no REO Property
acquired by the Trust Fund shall be rented (or allowed to continue to be rented)
or otherwise used by or on behalf of the Trust Fund in such a manner or pursuant
to any terms that would: (i) cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code; or
(ii) subject any Trust REMIC to the imposition of any federal income taxes on
the income earned from such REO Property, including any taxes imposed by reason
of Sections 860F or 860G(c) of the Code, unless the Servicer has agreed to
indemnify and hold harmless the Trust Fund with respect to the imposition of any
such taxes.
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.
Subject to the approval of the Master Servicer 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
of such offer in writing which notification shall set forth all material terms
of said offer (each a "Notice of Sale"). The Master Servicer shall be deemed to
have approved the sale of any REO Property unless the Master Servicer notifies
the 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
-25-
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 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 the Master Servicer shall
reasonably request.
Section 3.18 MERS.
(a) 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.
(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
3.15 or 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
-26-
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 the Servicer shall remit 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 make pursuant to Section 4.03, minus (iii) any amounts
attributable to Principal Prepayments, 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 Servicer.
-27-
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: 666-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO 2004-5H
Section 4.02 Statements to Master Servicer.
Not later than the tenth (10th) calendar day of each month, the Servicer
shall furnish to the Master Servicer (i) a monthly remittance advice containing
such information in the form of Xxxxxx Xxx Form 2010 or such other form as shall
be required by the Xxxxxx Mae Guides or by the Master Servicer as to the
accompanying remittance and the period ending on the last day of the preceding
calendar month and (ii) all such information required pursuant to clause (ii)
above on a magnetic tape or other similar media reasonably acceptable to the
Master Servicer.
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.
-28-
Beginning with calendar year 2004, the Servicer shall provide the Master
Servicer with such information concerning the Mortgage Loans as is necessary for
the Master Servicer or the Trustee to prepare the Trust Fund's federal income
tax return as the Master Servicer 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 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.
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
to the extent permitted by Section 3.02 of this Agreement) 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 Trust Fund 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
-29-
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 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.
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 each Seller, 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 D hereto.
-30-
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
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.
-31-
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 State of
Delaware 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;
(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
-32-
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.
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 or the Seller 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 Trustee's or the
Master Servicer'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 Sections 9.01 and
9.02.
-33-
In addition, the Servicer shall indemnify the Seller, the Trustee and the
Master Servicer (and each of their respective directors, officers, employees and
agents) 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 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 and
the Trustee 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 or the Master Servicer 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 or the Master Servicer for compliance with this
Agreement.
Section 6.03 Additional Indemnification by the Servicer; Third Party
Claims.
The Servicer shall indemnify the Seller, the Depositor, the Trustee and
the Master Servicer (and each of their respective directors, officers, employees
and agents) 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
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.
-34-
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 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 a Xxxxxx Mae
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 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 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.
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
-35-
each case, the prior written consent of the Seller and the Master Servicer,
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 and the Master
Servicer, 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; provided, that in each case, there must be delivered to
the Master Servicer and the Trustee 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. Notwithstanding the foregoing, the Servicer, without
the consent of the Seller, the Master Servicer or the Trustee, 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 and the Master Servicer
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 Master Servicer and the
Trustee which Opinion of Counsel shall be in form and substance acceptable to
the Master Servicer and the Trustee. 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 and the Master
Servicer, then the Seller or the Master Servicer 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 and (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. 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 Trustee of the appointment of any subservicer and shall furnish to the
Master Servicer a copy of such subservicing agreement. For purposes of this
Agreement, the Servicer shall be deemed to
-36-
have received payments on Mortgage Loans immediately upon receipt by any
subservicer of such payments. Any such subservicing agreement shall 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 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
Master Servicer 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.
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
(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,
-37-
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.
In each and every such case, so long as an event of default shall not have
been remedied, in addition to whatever rights the Seller or the Master Servicer
may have at law or equity to damages, including injunctive relief and specific
performance, the Seller or the Master Servicer, 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 Seller and the Master Servicer. Upon written request from the
Seller, the Servicer shall prepare, execute and deliver to the successor entity
designated by the Seller any and all documents and other instruments, place in
such successor's possession all Servicing Files relating to the Seller's
Mortgage Loans, 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 and the Master Servicer and such successor 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.
-38-
By a written notice, the Seller and the Master Servicer 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.
Section 8.02 Termination Without Cause.
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 or (iii) at the sole
discretion of the Seller (acting in its capacity as owner of the servicing
rights relating to the Mortgage Loans). Any such termination pursuant to clause
(iii) above shall be with 30 days' prior notice, in writing and delivered to the
Trustee, the Master Servicer and the Servicer by registered mail to the
addresses set forth in Section 9.03 of this Agreement (in the case of the
Servicer) or in the Trust Agreement (in the case of the Trustee or the Master
Servicer). The Servicer shall comply with the termination procedures set forth
in Sections 7.03, 8.01 and 9.01 hereof. The Master Servicer or the Trustee shall
have no right to terminate the Servicer pursuant to this Section 8.02. In
connection with a termination by the Seller pursuant to clause (iii) of this
Section 8.02, the Servicer shall be reimbursed 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. Any 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.
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(ii), the Master Servicer shall (i) 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(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 (with respect to those related Mortgage Loans). Any successor to
the Servicer shall be subject to the approval of the Master Servicer and, to the
extent required by the Trust
-39-
Agreement, the Trustee, 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, to the extent required by
the Trust Agreement, the Trustee, 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 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. 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
and the Seller under Section 6.02 and 6.03, it being understood and agreed that
the provisions of such Sections 6.01, 6.02 and 6.03 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.
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.
-40-
Any successor appointed as provided herein shall execute, acknowledge and
deliver to the Trustee, the Servicer, the Master Servicer 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 (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 Master
Servicer 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(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 Trustee, the Seller and Master Servicer 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 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):
-41-
(i) if to the Seller:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Contract Finance - SASCO 2004-5H
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(ii) if to the Servicer:
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
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: E. Xxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(iv) if to the Trustee:
Citibank, N.A.
000 Xxxx Xxxxxx
14th Floor, Zone 0
Xxx Xxxx, Xxx Xxxx 00000
-42-
Attention: Structured Finance-SASCO 2004-5H
Telephone: 000-000-0000
Facsimile: 000-000-0000
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.
-43-
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.
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 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, each Seller, the Trustee 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.
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, 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 the 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(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
-44-
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 the
Seller's rights arising pursuant to Section 8.02(iii).
Section 9.12 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.
Section 9.13 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
Section 9.14 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 9.15 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
-45-
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.
-46-
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: Xxxxxxxx Xxxxxx
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:
CITIBANK, N.A.,
as Trustee
By:
---------------------------------
Name:
Title:
S-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
A-1
EXHIBIT B
CUSTODIAL ACCOUNT CERTIFICATION
_______ __, 200_
Aurora Loan Services Inc. hereby certifies that it has established the
account described below as a Custodial Account pursuant to Section 3.03 of the
Servicing Agreement dated January 1, 2004, by and between Xxxxxx Brothers
Holdings Inc., as seller, Aurora Loan Services Inc., in the dual capacity of
servicer and master servicer, and acknowledged by Citibank, N.A., as trustee.
Title of Account: Aurora Loan Services Inc., in trust for the Master Servicer
for Structured Asset Securities Corporation, Mortgage Pass-Through Certificates,
Series 2004-5H, and various Mortgagors.
Account Number: _______________
Address of office or branch of the firm at which Account is maintained:
_______________________________________
_______________________________________
_______________________________________
AURORA LOAN SERVICES INC
By:______________________________
Name:
Title
B-1
EXHIBIT C
ESCROW ACCOUNT CERTIFICATION
Aurora Loan Services Inc. hereby certifies that it has established the
account described below as a Custodial Account pursuant to Section 3.05 of the
Servicing Agreement dated January 1, 2004, by and between Xxxxxx Brothers
Holdings Inc., as seller, Aurora Loan Services Inc., in the dual capacity of
servicer and master servicer, and acknowledged by Citibank, N.A., as trustee.
Title of Account: Aurora Loan Services Inc., in trust for the Master Servicer
for Structured Asset Securities Corporation, Mortgage Pass-Through Certificates,
Series 2004-5H, and various Mortgagors.
Account Number: _______________
Address of office or branch of the firm at which Account is maintained:
_______________________________________
_______________________________________
_______________________________________
AURORA LOAN SERVICES INC
By:______________________________
Name:
Title:
C-1
EXHIBIT D
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 SASCO 2004-5H
[__________]
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 January 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 [_________], 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-1
AURORA LOAN SERVICES INC.
By:
--------------------------------------
Name:
Title:
D-2
