RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into as
of the 1st day of March, 2004, by and among XXXXXXXXX MORTGAGE HOME LOANS, INC.,
a Delaware corporation ("Xxxxxxxxx" or the "Seller"), and XXXXX FARGO HOME
MORTGAGE, INC., as servicer (the "Servicer"), and acknowledged by Xxxxx Fargo
Bank, N.A., as master servicer (the "Master Servicer"), and DEUTSCHE BANK
NATIONAL TRUST COMPANY, as Trustee (the "Trustee"), recites and provides as
follows:
RECITALS
WHEREAS, the Seller has conveyed certain mortgage loans identified on
Schedule I hereto (the "Mortgage Loans") to Structured Asset Mortgage
Investments II, Inc., a Delaware special purpose corporation ("XXXX XX"), which
in turn has conveyed the Mortgage Loans to the Trustee, on behalf of Xxxxxxxxx
Mortgage Securities Trust 2004-1 (the "Trust"), under a trust pooling and
servicing agreement dated as of March 1, 2004 (the "Pooling and Servicing
Agreement"), among the Trustee, the Master Servicer, Xxxxx Fargo Bank, N.A., as
securities administrator, XXXX XX, as depositor (referred to herein as the
"Depositor"), Deutsche Bank National Trust Company Delaware, as Delaware
trustee, and the Seller;
WHEREAS, the Mortgage Loans were purchased by the Seller and are currently
being serviced by the Servicer pursuant to a Seller's Warranties and Servicing
Agreement between the Seller and the Servicer, as seller, dated as of February
1, 2004 (the "Servicing Agreement"), a copy of which is attached as Exhibit B
hereto;
WHEREAS, the Seller desires that the Servicer continue to service the
Mortgage Loans, and the Servicer has agreed to do so, subject to the rights of
the Seller to terminate the rights and obligations of the Servicer hereunder
without cause but subject to the other conditions set forth herein;
WHEREAS, the Master Servicer and any successor master servicer shall be
obligated, 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 upon the occurrence and
continuance of an Event of Default by the Servicer under this Agreement;
WHEREAS, the Seller and the Servicer desire that the provisions of the
Servicing Agreement shall apply to the Mortgage Loans, but only to the extent
provided herein and that this Agreement shall govern the Mortgage Loans for so
long as such Mortgage Loans remain subject to the provisions of the Pooling and
Servicing Agreement;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Seller, the Master Servicer and the Servicer
hereby agree as follows:
AGREEMENT
1. DEFINITIONS. Capitalized terms used and not defined in this Agreement,
including Exhibit A hereto, and any provisions of the Servicing Agreement
incorporated by reference herein, shall have the meanings ascribed to such terms
in the Pooling and Servicing Agreement.
2. TRUST CUT-OFF DATE. The parties hereto acknowledge that by operation of
Section 4.05 and 5.01 of the Servicing Agreement, the remittance on April 19,
2004 to the Trust is to include principal due after March 1, 2004 (the "Trust
Cut-off Date") plus interest at the Mortgage Loan Remittance Rate due on the
related Due Date exclusive of any portion thereof allocable to a period prior to
the Trust Cut-off Date.
3. SERVICING. The Servicer agrees, with respect to the Mortgage Loans, to
perform and observe the duties, responsibilities and obligations that are to be
performed and observed under the provisions of the Servicing Agreement, except
as otherwise provided herein and on Exhibit A hereto, and that the provisions of
the Servicing Agreement, as so modified, are and shall be a part of this
Agreement to the same extent as if set forth herein in full.
4. MASTER SERVICING; TERMINATION OF SERVICER. The Servicer, including any
successor servicer hereunder, shall be subject to the supervision of the Master
Servicer, which Master Servicer shall be obligated to ensure that the Servicer
services the Mortgage Loans in accordance with the provisions of this Agreement.
The Master Servicer, acting on behalf of the Trustee, which is acting on behalf
of the Trust, the owner of the Mortgage Loans, shall have the same rights as the
Purchaser under the Servicing Agreement to enforce the obligations of the
Servicer under the Servicing Agreement and the term "Purchaser" as used in the
Servicing Agreement in connection with any rights of the Purchaser shall refer
to the Master Servicer, except as otherwise specified in Exhibit A hereto. The
Master Servicer shall be entitled to terminate the rights and obligations of the
Servicer under this Agreement upon the failure of the Servicer to perform any of
its obligations under this Agreement or upon an Event of Default, as provided in
Article X of the Servicing Agreement. Notwithstanding anything herein to the
contrary, in no event shall the Master Servicer assume any of the obligations of
the Purchaser under the Servicing Agreement; and, in connection with the
performance of the Master Servicer's duties hereunder, the parties and other
signatories hereto agree that the Master Servicer shall be entitled to all of
the rights, protections and limitations of liability afforded to the Master
Servicer under the Pooling and Servicing Agreement.
5. REPRESENTATIONS. Neither the Servicer nor the Master Servicer shall be
obligated or required to make any further representations and warranties
regarding the characteristics of the Mortgage Loans in connection with the
transactions contemplated by the Pooling and Servicing Agreement and issuance of
the Certificates pursuant thereto. Notwithstanding anything to the contrary, the
representations set forth in Section 3.02 of the Servicing Agreement shall
remain in full force and effect as of the date of the Servicing Agreement.
Further, the representations made in Section 3.01 of the Servicing Agreement
shall be deemed to be made as of the date of this Agreement.
6. NOTICES. All notices, consents, certificates and other communications
required to be delivered between or among the parties hereto (including any
third party beneficiary thereof) or required to be provided to the Trustee shall
be in writing, may be in the form of facsimile or electronic transmission, and
shall be deemed received or given when mailed first-class mail, postage prepaid,
addressed to each other party at its address specified below or, if sent by
facsimile or electronic mail, when facsimile or electronic confirmation of
receipt by the recipient is received by the sender of such notice. Each party
may designate to the other parties in writing, from time to time, other
addresses to which notices and communications hereunder shall be sent. All
notices and other written information required to be delivered to the Master
Servicer under this Agreement shall be delivered to the Master Servicer at the
following address:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxxx Xxxxxxxxxx, Xxxxxxxxx 0000-0
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made to the following wire account:
Xxxxx Fargo Bank, N.A.
San Francisco, CA
ABA# 000-000-000
Account No. 0000000000
Account Name: Corporation Trust Clearing
FFC: 18155100, Xxxxxxxxx 2004-1
All notices and other written information required to be delivered to the
Trustee hereunder shall be delivered to the Trustee at the following address:
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxxxx 2004-1
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices and other written information required to be delivered to the
Seller hereunder shall be delivered to it at the following address:
Xxxxxxxxx Mortgage Home Loans, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxx (Xxxxxxxxx 2004-1)
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices and written information required to be delivered to the
Servicer hereunder shall be delivered to the Servicer at the following address:
Xxxxx Fargo Home Mortgage, Inc.
0 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, MAC X2401-042
With a copy to:
Xxxxx Fargo Home Mortgage, Inc.
1 Home Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attention: Legal Department, X2401-06T
7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING NEW YORK OR
OTHER CHOICE OF LAW RULES TO THE CONTRARY.
8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
9. RECONSTITUTION. The Seller and the Servicer agree that this Agreement is
a "Reconstitution Agreement" and that the date hereof is the "Reconstitution
Date," each as defined in the Servicing Agreement.
10. REMIC STATUS. The Servicer is hereby notified, and the Servicer hereby
acknowledges such notice, that the Mortgage Loans will be held in a
securitization pursuant to which a REMIC election will be made.
Executed as of the day and year first above written.
XXXXXXXXX MORTGAGE HOME LOANS, INC.,
as Seller
By: /S/ XXXXXXX X. XXXXX
-------------------------------------
Xxxxxxx X. Xxxxx
Vice President
XXXXX FARGO HOME MORTGAGE, INC.,
as Servicer
By: /S/ XXXXXX XXXX
-------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
Acknowledged By:
XXXXX FARGO BANK, N.A.
as Master Servicer
By: /S/ XXX XXXXX
-----------------------------
Name: Xxx Xxxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee on behalf of Xxxxxxxxx Mortgage Securities Trust 2004-1
By: /S/ XXXXXX XXXXXXX
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Associate
EXHIBIT A
Modifications to the Servicing Agreement
1. Unless otherwise specified herein, any provisions of the Servicing
Agreement, including definitions relating to (i) Pass-Through Transfers and
Whole Loan Transfers and (ii) except with respect to Article III, Closing Date,
shall be disregarded for the purposes of this Agreement. Further, the following
provisions of the Servicing Agreement shall be inapplicable to this Agreement:
Article II (Conveyance of Mortgage Loans; Possession of Mortgage Files; Books
and Records; Custodial Agreement; Delivery of Documents), Section 4.21
(Designation of a Master Servicer) and Section 7.02 (Financial Statements;
Servicing Facility).
2. The definition of "Business Day" in Article 1 is hereby amended as
follows:
BUSINESS DAY: Any day other than (a) a Saturday or Sunday or (b) a day
on which banking and savings and loan institutions in the States of
California, Delaware, New York, Maryland, Minnesota or Iowa are
authorized or obligated by law or executive order to be closed.
3. The definition of "Escrow Account" in Article 1 is hereby amended as
follows:
ESCROW ACCOUNT: The separate trust account or accounts created and
maintained pursuant to this Agreement which shall be entitled "Xxxxx
Fargo Home Mortgage, Inc., as Servicer, in trust for the Trustee on
behalf of Xxxxxxxxx Mortgage Securities Trust 2004-1.
4. The definition of "Qualified Substitute Mortgage Loan" in Section 1 is
hereby amended by the addition of the following language at the end of the first
sentence thereof:
and (vi) qualify as a Substitute Mortgage Loan under the Pooling and
Servicing Agreement.
5. Article III (Representations and Warranties Remedies and Breach) is
hereby amended to change the reference to the word "Purchaser" to the phrase
"the Master Servicer, the Trustee and the Trust" in each instance.
6. Section 4.01 (Company to Act as Servicer) is hereby amended by (i)
replacing the first use of the word "Purchaser" in the first sentence of the
second paragraph with the word "Trust," (ii) deleting the language "and the
Company has obtained the prior written consent of the Purchaser" from the first
sentence of the second paragraph, (iii) replacing the word "Purchaser" in the
second to last sentence of the second paragraph with the word "Trustee", (iv)
deleting the last sentence of the second paragraph and replacing it with, "If
reasonably required by the Company, the Master Servicer shall obtain from the
Trustee and furnish to the Company any powers of attorney or other documents
necessary or appropriate to enable the Company to carry out its servicing and
administrative duties under this Agreement", and (v) replacing the word
"Purchaser" in the last paragraph with the word "Trust."
7. Section 4.02 (Liquidation of Mortgage Loans) is hereby amended by (i)
replacing the word "Purchaser" in the first and last sentences of the first
paragraph with the word "Trust" and (ii) deleting the third and fourth
paragraphs in their entirety and replacing them with the following:
Notwithstanding anything to the contrary contained in this Section
4.02 or in Section 4.16, in connection with a foreclosure or
acceptance of a deed in lieu of foreclosure, in the event the Company
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 Company. Upon completion
of the inspection, the Company shall provide 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 Company shall not proceed with foreclosure or acceptance of a deed
in lieu of foreclosure without the consent of the Master Servicer. In
the event that the environmental inspection report is inconclusive as
to whether or not the Mortgaged Property is contaminated by hazardous
or toxic substances or wastes, the Company shall not proceed with
foreclosure or acceptance of a deed in lieu of foreclosure without the
consent of the Master Servicer. The Company shall be reimbursed for
all Servicing Advances made pursuant to this paragraph with respect to
the related Mortgaged Property from the Custodial Account.
8. Section 4.04 (Establishment of and Deposits to Custodial Account) is
hereby amended by deleting the language "in trust for the Purchaser and/or
subsequent purchasers of Mortgage Loans, and various Mortgagors - P & I" in the
first paragraph and replacing it with the phrase "in trust for the Trustee on
behalf of Xxxxxxxxx Mortgage Securities Trust 2004-1."
9. Section 4.05 (Permitted Withdrawals From Custodial Account) is hereby
amended by deleting clause (ii) and replacing it with the following:
to reimburse itself for each unreimbursed Monthly Advance provided,
that with respect to any Mortgage Loan the Company's right to
reimbursement shall be limited to the funds collected by the Company
from the related Mortgagor or any other Person, including, but not
limited to, Liquidation Proceeds, Condemnation Proceeds and Insurance
Proceeds, and with respect to REO Property, funds received as rental
or similar income. The Company's right to reimbursement set forth in
the preceding sentence shall be prior to the rights of the Trust;
provided however, that in the event that the Company determines in
good faith that any unreimbursed Monthly Advances will not be
recoverable from amounts representing late recoveries of payments of
principal or interest respecting the particular Mortgage Loan as to
which such Monthly Advance was made or from Liquidation Proceeds or
Insurance Proceeds with respect to such Mortgage Loan, the Company may
reimburse itself for such amounts from the Custodial Account, it being
understood, in the case of any such reimbursement, that the Company's
right thereto shall be prior to the rights of the Trust;
10. Section 4.06 (Establishment of and Deposits to Escrow Account) is
hereby amended by deleting the language "in trust for the Purchaser and/or
subsequent purchasers Mortgage Loans, and various Mortgagors T & I" in the first
paragraph and replacing it with the phrase "in trust for the Trustee on behalf
of Xxxxxxxxx Mortgage Securities Trust 2004-1."
11. Section 4.15 (Maintenance of PMI Policy; Claims) is hereby amended by
replacing the word "Purchaser" in the second line of the second paragraph with
the phrase "Trustee and the Trust."
12. Section 4.16 (Title, Management and Disposition of REO Property) is
hereby amended by:
(i) deleting the first paragraph and replacing it with the following:
In the event that title to the 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 Trust.
(ii) by replacing the third paragraph of such section (before the amendment
made by (ii) above) by the following:
The Company shall use its best efforts to dispose of the REO Property
as soon as possible and shall sell such REO Property in any event
within three years after title has been taken to such REO Property,
unless (a) a REMIC election has not been made with respect to the
arrangement under which the Mortgage Loans and the REO Property are
held, and (b) the Company determines, and gives an appropriate notice
to the Master Servicer to such effect, that a longer period is
necessary for the orderly liquidation of such REO Property. If a
period longer than three years is permitted under the foregoing
sentence and is necessary to sell any REO Property, the Company shall
report monthly to the Master Servicer as to the progress being made in
selling such REO Property.
(iii) replacing the first use of the word "Purchaser" in the first sentence
of the fifth paragraph (before the amendment made by (ii) above) with the word
"Trust."
13. Section 5.02 (Statements to Purchaser) is amended by inserting the
phrase ", including information as agreed upon by the Company and the Master
Servicer, and" after the words "monthly remittance advice."
14. Section 6.02 (Satisfaction of Mortgages and Release of Mortgage Files)
is hereby amended by (i) adding the phrase "from the Trustee" at the end of the
first paragraph, (ii) replacing the first use of the word "Purchaser" in the
first sentence of the second paragraph with the word "Trust" and (iii) replacing
the second and third uses of the word "Purchaser" in the first sentence of the
second paragraph with the word "Trustee."
15. Section 8.01 (Indemnification; Third Party Claims) is hereby amended by
(i) replacing the word "Purchaser" in the first three sentences with the phrase
"Master Servicer, the Trustee and the Trust" in each instance and (ii) replacing
the word "Purchaser" in the last sentence with the word "Trust."
16. Section 8.02 (Merger or Consolidation of the Company) is hereby amended
by replacing the word "Purchaser" in the last line of the second paragraph with
the phrase "Master Servicer and the Trustee."
17. Section 8.03 (Limitation on Liability of Company and Others) is hereby
amended by (i) replacing the word "Purchaser" on the second line thereof with
the phrase "the Master Servicer, the Trustee or the Trust," and (ii) replacing
the word "Purchaser" in the last sentence thereof with the word "Trust."
18. Section 8.04 (Limitation on Resignation and Assignment by Company) is
hereby amended by replacing the first use of the word "Purchaser" with the word
"Trust".
19. Section 9.01 (Removal of Mortgage Loans from Inclusion Under this
Agreement) is hereby deleted in its entirety.
20. Section 10.01 (Events of Default) is hereby amended by (i) replacing
the first use of the word "Purchaser" in the first paragraph following
subsection (ix) with the words "Master Servicer or the Trustee," and (ii)
replacing the word "Purchaser" in the second paragraph following subsection (ix)
with the words "Master Servicer or the Trustee" in each instance.
21. Section 11.01 (Termination) is hereby amended by replacing the word
"Purchaser" in clause (ii) with the phrase "Trustee (at the direction of the
requisite percentage Certificateholders, in accordance with the Pooling and
Servicing Agreement), provided such termination is also acceptable to the Master
Servicer."
22. Section 11.02 (Termination Without Cause) is hereby amended by
replacing the word "Purchaser" with the word "Trust" in each instance in the
second paragraph.
23. Section 12.01 (Successor to Company) is hereby amended by:
(i) replacing the words "Prior to" with the word "Upon" in the first line
of the first paragraph thereto.
(ii) changing the word "Purchaser" in the second line of the first
paragraph to the word "Master Servicer" and by adding the phrase ", in
accordance with the Pooling and Servicing Agreement," after the word "shall" in
the second line of the first paragraph thereto.
(iii) adding the following sentence immediately after the first sentence of
the first paragraph:
Any successor to the Company shall be subject to the approval of the
Master Servicer and each Rating Agency, as evidenced by a letter from
such Rating Agency delivered to the Trustee that the transfer of
servicing will not result in a qualification, withdrawal or downgrade
of the then-current rating of any of the Certificates.
(iv) replacing the word "Purchaser" in the last sentence of the first
paragraph with the phrase "Master Servicer or the Trustee."
(v) replacing the word "Purchaser" in the second line of the second
paragraph with the phrase "Master Servicer and the Trustee."
(vi) replacing the word "Purchaser" in the eighth line of the second
paragraph with the phrase "Master Servicer, Trustee or Trust."
(vii) adding the following paragraph after the fourth paragraph thereof:
Except as otherwise provided in this Agreement, all reasonable costs
and expenses incurred in connection with any transfer of servicing due
to an Event of Default under Section 10.01, including, without
limitation, the costs and expenses of the Master Servicer or any other
Person in appointing a successor servicer, or of the Master Servicer
in assuming the responsibilities of the Company hereunder, or of
transferring the Mortgage Files and the other necessary data,
including the completion, correction or manipulation of such servicing
data as may be required to correct any errors or insufficiencies in
the servicing data, to the successor servicer shall be paid by the
terminated or resigning Company from its own funds without
reimbursement.
24. Section 12.02 (Amendment) is hereby amended by replacing the word
"Purchaser" with the phrase "Master Servicer and acknowledged by the Trustee on
behalf of the Trust."
25. New Section 12.12 (Intended Third Party Beneficiaries) is added to the
Servicing Agreement to read as follows:
Section 12.12. INTENDED THIRD PARTY BENEFICIARIES. Notwithstanding any
provision herein to the contrary, the parties to this Agreement agree
that it is appropriate, in furtherance of the intent of such parties
as set forth herein, that the Trustee, on behalf of the Trust, receive
the benefit of the provisions of this Agreement as intended third
party beneficiary of this Agreement to the extent of such provisions.
The Company shall have the same obligations to the Trustee as if it
were a party to this Agreement, and the Trustee, on behalf of the
Trust, shall have the same rights and remedies to enforce the
provisions of this Agreement as if it were a party to this Agreement.
The Company shall only take direction from the Master Servicer (if
direction by the Master Servicer is required under this Agreement)
unless otherwise directed by this Agreement. Notwithstanding the
foregoing, all rights and obligations of the Master Servicer and the
Trustee hereunder (other than the right to indemnification and the
indemnification obligations) shall terminate upon termination of the
Trust pursuant to the Pooling and Servicing Agreement.
EXHIBIT B
Servicing Agreement
SCHEDULE I
Mortgage Loan Schedule
(delivered to the Trustee in electronic format)