EXHIBIT 99.4
EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of November, 2003, by and between XXXXXX BROTHERS HOLDINGS
INC., a Delaware corporation (the "Seller" or "Xxxxxx Brothers Holdings"), and
CENDANT MORTGAGE CORPORATION, a New Jersey corporation (the "Servicer") having
an office at 0000 Xxxxxxxxxx Xxxx, Xx. Xxxxxx, Xxx Xxxxxx 00000, recites and
provides as follows:
RECITALS
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Bank") acquired certain first
lien, residential mortgage loans from the Servicer and Xxxxxx'x Gate Residential
Mortgage Trust (formerly known as Cendant Residential Mortgage Trust) ("Xxxxxx'x
Gate"), which mortgage loans were either originated or acquired by the Servicer
or Xxxxxx'x Gate, pursuant to a Mortgage Loan Flow Purchase, Sale & Servicing
Agreement, dated as of May 29, 2001, as amended by Amendment Number 1, dated as
of June 18, 2001 (as amended, the "Servicing Agreement"), by and among the Bank,
as purchaser, the Servicer, as seller and Xxxxxx'x Gate and attached hereto as
Exhibit B.
WHEREAS, the mortgage loans are currently being serviced pursuant to
the Servicing Agreement.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated
November 1, 2003 (the "Assignment and Assumption Agreement") annexed as Exhibit
C hereto, the Seller acquired from the Bank all of the Bank's right, title and
interest in and to the mortgage loans currently serviced under the Servicing
Agreement and assumed for the benefit of each of the Servicer and the Bank the
rights and obligations of the Bank as owner of such mortgage loans pursuant to
the Servicing Agreement.
WHEREAS, the Seller has conveyed the mortgage loans (the "Mortgage
Loans") identified on Exhibit D to Structured Asset Securities Corporation, a
Delaware special purpose corporation ("SASCO"), which in turn has conveyed the
Mortgage Loans to JPMorgan Chase Bank (the "Trustee"), pursuant to a trust
agreement dated as of November 1, 2003 (the "Trust Agreement"), by and among the
Trustee, Aurora Loan Services Inc., as master servicer ("Aurora", and together
with any successor Master Servicer appointed pursuant to the provisions of the
Trust Agreement, the "Master Servicer") and SASCO.
WHEREAS, the Seller desires that the Servicer continue to service the
Mortgage Loans, and the Servicer has agreed to do so.
WHEREAS, the Seller and the Servicer agree that the provisions of the
Servicing Agreement, as amended hereby with respect to the related Mortgage
Loans, shall continue to apply to such Mortgage Loans, and shall govern such
Mortgage Loans for so long as such Mortgage Loans remain subject to the
provisions of the Trust Agreement.
WHEREAS, the Master Servicer and any successor master servicer shall be
obligated, among other things, to supervise the servicing of the Mortgage Loans
on behalf of the Trustee, and shall have the right under the conditions
specified herein to terminate for cause the rights and obligations of the
Servicer under this Agreement.
WHEREAS, the Seller and the Servicer intend that each of the Master
Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Seller and the Servicer hereby
agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this
Agreement, including Exhibit A hereto and any provisions of the Servicing
Agreement incorporated by reference herein (regardless of whether such terms are
defined in the Servicing Agreement), shall have the meanings ascribed to such
terms in the Trust Agreement.
2. 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.
3. 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 and the SASCO
2003-37A Trust Fund (the "Trust Fund") created pursuant to the Trust Agreement,
shall have the same rights as the Seller as purchaser under the Servicing
Agreement to enforce the obligations of the Servicer under such Servicing
Agreement and the term "Purchaser" as used in the Servicing Agreement in
connection with any rights of the Seller shall refer to the Trust Fund or, as
the context requires, the Master Servicer acting in its capacity as agent for
the Trust Fund, except as otherwise specified in Exhibit A hereto. The Master
Servicer shall be entitled to terminate the rights and obligations of the
Servicer under this Agreement upon the failure of the Servicer to perform any of
its obligations under this Agreement, which failure results in an Event of
Default as provided in Section 10.01 of the Servicing Agreement. Notwithstanding
anything herein to the contrary, in no event shall the Master Servicer assume
any of the obligations of the Seller 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 Trust Agreement.
4. Compliance with HOEPA. The Servicer is currently in compliance with
the Home Ownership and Equity Protection Act ("HOEPA") and will continue to
operate its business in compliance with HOEPA.
5. No Representations. Except as described herein, neither the Servicer
nor the Master Servicer shall be obligated or required to make any
representations and warranties regarding the characteristics of the Mortgage
Loans (other than those representations and warranties made in Section 3.03 of
the Servicing Agreement) in connection with the transactions contemplated by the
Trust Agreement and issuance of the Certificates issued pursuant thereto. The
Servicer hereby makes the following additional representations and warranties
which may be enforced in accordance with the Servicing Agreement:
(a) No Mortgage Loan originated on or after October 1, 2002 and secured by a
Mortgaged Property located in the State of Georgia is a "home loan" and is
either a "covered" or "high cost loan" as defined in the Georgia Fair Lending
Act, as amended.
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6. Notices. All notices and communications between or among the parties
hereto (including any third party beneficiary thereof) or required to be
provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
All notices required to be delivered to the Master Servicer under this
Agreement shall be delivered to the Master Servicer at the following address:
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: E. Xxxx Xxxxxxxxxx, Master Servicing, SASCO 0000-00X
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled basis to the following wire
account:
JPMorgan Chase Bank
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc., Master Servicing Payment
Clearing Account
Account No.: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO 2003-37A
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
JPMorgan Chase Bank
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Institutional Trust Services/Global Debt - SASCO 0000-00X
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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All notices required to be delivered to the Seller hereunder shall be
delivered to the Seller at the following address:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Xxxxxx, Xxxxx & Bockius, LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All notices required to be delivered to the Servicer hereunder shall be
delivered to the address of its office as set forth in the first paragraph of
this Agreement.
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.
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Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By:
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Authorized Signatory
CENDANT MORTGAGE CORPORATION,
as Servicer
By:
-----------------------------
Name: Xxxxx Xxxx
Title: Vice President
Acknowledged By:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:
------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Chief Executive Officer
JPMORGAN CHASE BANK,
as Trustee
By:
------------------------------
Name: Pei Xxx Xxxxx
Title Trust Officer
EXHIBIT A
Modifications to the Servicing Agreement
1. Unless otherwise specified herein, for purposes of this Servicing
Agreement, including definitions, relating to (i) representations and
warranties of the Purchaser, (ii) the sale and purchase of the Mortgage
Loans, (iii) Funding Dates and (iv) Specially Serviced Mortgage Loans,
shall be disregarded. The exhibits to the Servicing Agreement and all
references to such exhibits shall also be disregarded.
2. For reporting purposes, a Mortgage Loan is "delinquent" when any payment
contractually due thereon has not been made by the close of business on
the Due Date therefor. Such Mortgage Loan is "30 days Delinquent" if such
payment has not been received by the close of business on the
corresponding day of the month immediately succeeding the month in which
such payment was first due, or, if there is no such corresponding day
(e.g., as when a 30-day month follows a 31-day month in which a payment
was due on the 31st day of such month), then on the last day of such
immediately succeeding month. Similarly for "60 days Delinquent" and the
second immediately succeeding month and "90 days Delinquent" and the third
immediately succeeding month.
3. A new definition of "Adverse REMIC Event" is hereby added to Article I to
read as follows:
"Adverse REMIC Event": As defined in Article X of the Trust
Agreement.
4. The definition of "Collection Account" is hereby amended to change the
words "the Purchaser of Mortgage Loans under the Mortgage Loan Flow
Purchase, Sale & Servicing Agreement, dated as of March 29, 2001" to
"SASCO 2003-37A Trust Fund".
5. The definition of "Custodial Agreement" in Article I is hereby amended in
its entirety to read as follows:
"Custodial Agreement" means the Custodial Agreement dated as of
November 1, 2003 between the Custodian and the Trustee.
6. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
"Custodian" means U.S. Bank, National Association, any successor in
interest or any successor custodian appointed pursuant to the
Custodial Agreement.
7. The definition of "Cut Off Date" in Article I is hereby amended in its
entirety to read as follows:
"Cut Off Date": The close of business on November 1, 2003.
8. The definition of "Eligible Account" is hereby amended and restated in its
entirety to read as follows:
"Eligible Account": One or more accounts that are maintained with
(i) a depository the accounts of which are insured by the FDIC and
the debt obligations of which are rated AA (or its equivalent) or
better by each Rating Agency; (ii) the corporate trust department of
any bank the debt obligations of which are rated at least A-1 or its
equivalent by each Rating Agency; or (iii) Xxxxxx Brothers Bank,
FSB, a federal savings bank.
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9. The definition of "Escrow Account" in Article I is hereby amended by
changing the words "Purchaser under the Mortgage Loan Flow Purchase, Sale
& Servicing Agreement, dated as of March 29, 2001 (as amended), and
various Mortgagors" to "SASCO 2003-37A Trust Fund".
10. The definition of "Mortgage Loan Schedule" in Article I is hereby amended
in its entirety to read as follows:
"Mortgage Loan Schedule": The schedule of Mortgage Loans setting
forth certain information with respect to the Mortgage Loans, which
Mortgage Loan Schedule is attached as Exhibit B to this Agreement.
11. A new definition of "Opinion of Counsel" is hereby added to Article I to
read as follows:
"Opinion of Counsel" A written opinion of counsel, who may be an
employee of the Servicer, that is reasonably acceptable to the
Trustee and the Master Servicer provided that any Opinion of Counsel
relating to (a) qualification of the Mortgage Loans in a REMIC or
(b) compliance with the REMIC Provisions, must be an opinion of
counsel reasonably acceptable to the Trustee and Xxxxxx Brothers
Holdings Inc., who (i) is in fact independent of any Seller, the
Servicer and any Master Servicer of the Mortgage Loans, (ii) does
not have any material direct or indirect financial interest in the
Servicer or any Master Servicer of the Mortgage Loans or in an
affiliate of any such entity and (iii) is not connected with any
Seller, the Servicer or any Master Servicer of the Mortgage Loans as
an officer, employee, director or person performing similar
functions.
12. A new definition of "REMIC Provisions" is hereby added to Article I to
read as follows:
"REMIC Provisions: The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear
at sections 860A through 860G of Subchapter M of Chapter 1 of the
Code, and related provisions, and regulations, including proposed
regulations and rulings, and administrative pronouncements
promulgated thereunder, as the foregoing may be in effect from time
to time."
13. The definition of "REO Property" in Article I is hereby amended by
replacing the word "Purchaser" with "Trustee on behalf of the Trust Fund".
14. The parties hereto acknowledge that Section 2.02 (Possession of Mortgage
Files) shall be inapplicable to this Agreement, as superseded by the
provisions of the Custodial Agreement and the Trust Agreement.
15. The parties hereto acknowledge that Section 2.05 (Transfer of Mortgage
Loans) of the Servicing Agreement shall be modified to indicate that the
Custodian shall prepare and execute at the direction of the Seller any
note endorsements in connection with transfer of the Mortgage Loans to the
Trust Fund as the owner of the Mortgage Loans and that the Seller shall
pay for any fees associated with the preparation and execution of such
note endorsements to the Trust Fund.
16. For purposes of servicing only, the second, third, fourth and fifth
paragraphs of Section 3.04 (Repurchase) are hereby restated to read as
follows:
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(2) 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 3.02 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 option, assign the Servicer's rights and
obligations under this Agreement (or respecting the affected
Mortgage Loans) to a successor Servicer selected by the Master
Servicer with the prior consent and approval of the Trustee. Such
assignment shall be made in accordance with Section 12.01.
(3) In addition, the Servicer shall indemnify (from its own funds)
the Trustee, the Trust Fund and the Master Servicer and hold each of
them harmless against any costs resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a
breach of the Servicer's representations and warranties contained in
this Agreement. It is understood and agreed that the remedies set
forth in this Section 3.04 constitute the sole remedies of the
Master Servicer, the Trust Fund and the Trustee respecting a breach
of the foregoing representations and warranties.
(4) Any cause of action against the Servicer relating to or arising
out of the breach of any representations and warranties made in
Section 3.01 shall accrue upon (i) discovery of such breach by the
Servicer or notice thereof by the Trustee or 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 Trustee or the Master Servicer for compliance with this
Agreement
17. Section 5.01(3)(c)(3) is hereby amended by replacing the word "Purchaser"
with "Master Servicer".
18. Section 5.01(3) is hereby amended by removing the word "and" at the end of
subsection (e), replacing the period at the end of subsection (f) with a
"; and" and adding a new subsection (g) thereto to read as follows:
"(g) the Servicer shall not, unless default by the related Mortgagor
has occurred or is, in the reasonable judgment of the Servicer,
imminent, knowingly permit any modification, waiver or amendment of
any material term of any Mortgage Loan (including but not limited to
the interest rate, the principal balance, the amortization schedule,
or any other term affecting the amount or timing of payments on the
Mortgage Loan or the collateral therefor) unless the Servicer shall
have provided to the Master Servicer and the Trustee an Opinion of
Counsel in writing to the effect that such modification, waiver or
amendment would not cause an Adverse REMIC Event."
19. The parties hereto acknowledge that the reference to each Funding Date in
the second paragraph of Section 5.04 shall mean the "close of business on
November 1, 2003."
20. Section 5.04(10) is hereby amended in its entirety to read as follows:
"(10) interest on the amount of any Principal Prepayment at the
related Remittance Rate to the end of the month in which prepayment
of the related Mortgage Loan occurs, such deposit to be made from
the Servicer's own funds without reimbursement therefor."
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21. Section 5.13 (Management of REO Properties) is hereby amended by replacing
the second paragraph of such section thereof with the following:
"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 Service to the effect
that, under the REMIC Provisions and any relevant proposed
legislation and under applicable state law, the Trust Fund may hold
REO Property for a longer period without adversely affecting the
REMIC status of any REMIC included in the Trust Fund or causing the
imposition of a federal or state tax upon any 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 the Trust Fund 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."
22. Section 5.15 (Realization Upon Specially Serviced Mortgage Loans and REO
Properties) is hereby amended by changing the words "2 years" in the last
sentence of the third paragraph thereof to "3 years".
23. Section 6.01 (Remittances) is hereby amended by replacing the word
"Purchaser" with "Master Servicer" and by replacing paragraphs (1) and (2)
of such section with the following:
"(1) On each Remittance Date, the Servicer shall remit to the
Purchaser (a) all amounts credited to the Collection Account as of
the close of business on the last day of the related Due Period
(including (1) the amount of any Principal Prepayment, together with
interest thereon at the related Remittance Rate to the end of the
month in which prepayment of the related Mortgage Loan occurs and
(2) all proceeds of any REO Disposition net of amounts payable to
the Servicer pursuant to Section 5.13), net of charges against or
withdrawals from the Collection Account in accordance with Section
5.05, which charges against or withdrawals from the Collection
Account the Servicer shall make solely on such Remittance Date, plus
(b) all Monthly Advances, if any, which the Servicer is obligated to
remit pursuant to Section 6.03; provided that the Servicer shall not
be required to remit, until the next following Remittance Date, any
amounts attributable to Monthly Payments collected but due on a Due
Date or Dates subsequent to the related Due Period.
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(2) 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 No.: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO 2003-37A
24. Section 6.02 (Reporting) is hereby amended by replacing the word
"Purchaser" with "Master Servicer" and by replacing the first paragraph of
such section with the following:
Not later than the 10th calendar day of each month, the Servicer
shall furnish to the Master Servicer (i) a monthly remittance advice
and a monthly defaulted loan report in the formats mutually agreed
between the Servicer and the Master Servicer relating to the period
ending on the last day of the preceding calendar month and (ii) all
such information required pursuant to clause (i) above on a magnetic
tape or other similar media reasonably acceptable to the Master
Servicer.
25. Section 6.03 (Monthly Advances by Servicer) is hereby amended by adding
the following new sentence immediately following the second sentence of
such subsection (1):
Any Prepaid Monthly Payments so used to make Monthly Advances
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
payments to the Trust Fund required to be made on such Remittance
Date.
26. Sections 7.04 (Annual Statement as to Compliance) and 7.05 (Annual
Independent Certified Public Accountants' Servicing Report) are hereby
amended by replacing the word "Purchaser" with "Master Servicer,"
replacing the words "March 31" with "the last day of February" and
replacing the words "March 31, 2002" with "February 28, 2004."
27. Section 9.01 (Indemnification; Third Party Claims) is hereby amended by
changing the word "Purchaser" to "Master Servicer, Trustee and the Trust
Fund."
28. Section 9.02 (Merger or Consolidation of the Seller) is hereby amended by
changing the word "Purchaser" to "Trustee" where it appears in the proviso
to the second paragraph thereof.
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29. Section 9.04 (Servicer Not to Resign) is hereby amended in its entirety to
read as follows:
The Servicer shall neither assign this Agreement or the
servicing hereunder or delegate its rights or duties hereunder or
any portion hereof (to other than a third party in the case of
outsourcing routine tasks such as taxes, insurance and property
inspection, in which case the Servicer shall be fully liable for
such tasks as if the Servicer performed them itself) or sell or
otherwise dispose of all or substantially all of its property or
assets without the prior written consent of the Trustee and the
Master Servicer, which consent shall be granted or withheld in the
reasonable discretion of such parties, provided, however, that the
Servicer may assign its rights and obligations hereunder without
prior written consent of the Trustee and the Master Servicer to any
entity that is directly owned or controlled by the Servicer, and the
Servicer guarantees the performance of such entity hereunder. In the
event of such assignment by the Servicer, the Servicer shall provide
the Trustee and the Master Servicer with a written statement
guaranteeing the successor entity's performance of the Servicer's
obligations under the Agreement.
30. Section 10.01 (Events of Default) is hereby amended as follows:
(a) changing the words "3 Business Days" in Section 10.01(1) to "1
Business Day" and deleting the remainder of Section 10.01(1);
(b) by changing the words "45 days and 45-day" in Section 10.01(2) to "15
days and 15-day" respectively; and
(c) amending subclause (6) as follows: "Cendant Mortgage at any time is
neither FNMA or FHLMC approved servicer, and the Master Servicer has not
terminated the rights and obligations of Cendant Mortgage under this
Agreement and replaced Cendant Mortgage with a FNMA or FHLMC approved
servicer within 30 days of the absence of such approval;".
31. The parties hereto acknowledge that the remedies set forth in Section
10.01 may be exercised by either the Master Servicer or the Trustee on
behalf of the Trust Fund.
32. Section 11.01 (Term and Termination) is hereby amended by changing the
references to "Purchaser" in the second and third paragraph of such
section to "Master Servicer."
33. Section 11.02 (Termination without Cause) is hereby deleted in its
entirety.
34. Section 12.01 (Successor to the Servicer) is hereby amended in its
entirety to read as follows:
Simultaneously with the termination of the Servicer's
responsibilities and duties under this Agreement (a) pursuant to
Sections 9.04, 10.01, 11.01 or 11.02, the Master Servicer shall, in
accordance with the provisions of the Trust Agreement (i) succeed to
and assume all of the Servicer's responsibilities, rights, duties
and obligations under this Agreement, or (ii) appoint a successor
meeting the eligibility requirements of this Agreement set forth in
Section 9.02 and which shall succeed to all rights and assume all of
the responsibilities, duties and liabilities of the Servicer under
this Agreement with the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement. Any
successor to the Servicer that is not at that time a Servicer of
other Mortgage Loans for the Trust Fund shall be subject to the
approval of the Master Servicer, Xxxxxx Brothers Holdings Inc., the
Trustee and each Rating Agency (as such term is defined in the Trust
Agreement). Unless the successor servicer is at that time a servicer
of other mortgage loans for the Trust Fund, each Rating Agency must
deliver to the Trustee a letter to the effect that such transfer of
servicing will not result in a qualification, withdrawal or
downgrade of the then-current rating of any of the Certificates. In
connection with such appointment and assumption, the Master Servicer
or the Depositor, as applicable, may make such arrangements for the
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compensation of such successor out of payments on the Mortgage Loans
as it and such successor shall agree; provided, however, that no
such compensation shall be in excess of that permitted the 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 12.01 and shall in no event relieve the
Servicer of the representations and warranties made pursuant to
Section 3.02 and the remedies available to the Trustee under
Sections 3.04 and 9.01, it being understood and agreed that the
provisions of such Sections 3.02, 3.04 and 9.01 shall be applicable
to the Servicer notwithstanding any such resignation or termination
of the Servicer, or the termination of this Agreement.
Within a reasonable period of time, but in no event longer than
30 days of the appointment of a successor entity, the 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. The Servicer shall cooperate with the
Trustee and the Master Servicer, 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 any Escrow Account or thereafter received with respect to
the Mortgage Loans.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Trustee, the Servicer and the Master
Servicer an instrument (i) accepting such appointment, wherein the
successor shall make the representations and warranties set forth in
Section 3.02 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 Section 12.01
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.
The Servicer shall deliver within ten (10) Business Days 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.
A-7
Upon a successor's acceptance of appointment as such, the
Servicer shall notify the Trustee and Master Servicer of such
appointment in accordance with the notice procedures set forth
herein.
35. Section 12.07 (Waivers and Amendments, Noncontractual Remedies;
Preservation of Remedies) is hereby amended by adding the following two
paragraphs to the end of such Section 12.07:
Notwithstanding anything to the contrary elsewhere in this
Agreement, the Servicer shall not waive a prepayment penalty or
charge except under the following circumstances: (i) such waiver
would, in the reasonable judgment of Servicer, maximize total
proceeds taking into account the value of such prepayment penalty or
charge or (ii) the Servicer obtains a written Opinion of Counsel,
which may be in-house counsel for the Servicer, opining that any
prepayment penalty or charge is not legally enforceable in the
circumstances under which the related Principal Prepayment occurs.
In the event that the Servicer waives any prepayment penalty or
charge, other than as set forth in (i) above, the Servicer shall
deposit the amount of any such prepayment penalty or charge in the
Custodial Account for distribution to the Purchaser on the next
Remittance Date.
Notwithstanding anything to the contrary elsewhere in this
Agreement, the Servicer shall deposit the full amount of any
prepayment penalty or charge that is identified on the Mortgage Loan
Schedule into the Custodial Account at the time the related
prepayment penalty is deposited therein if and to the extent a
Mortgage Loan identified on the Mortgage Loan Schedule as having a
prepayment penalty or charge prepays regardless of whether the
actual prepayment penalty or charge is lower than described in the
Mortgage Loan Schedule or is not a contractual obligation of the
borrower on the Mortgage Note.
36. A new Section 12.12 (Intended Third Party Beneficiaries) is hereby added
to read as follows:
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 Master Servicer and the Trustee receive the
benefit of the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such provisions.
The Servicer shall have the same obligations to the Master Servicer
and the Trustee as if they were parties to this Agreement, and the
Master Servicer and the Trustee shall have the same rights and
remedies to enforce the provisions of this Agreement as if they were
parties to this Agreement. The Servicer shall only take direction
from the Master Servicer (if direction by the Master Servicer is
required under this Agreement) unless otherwise directed by this
Agreement. Notwithstanding the foregoing, all rights and obligations
of the Master Servicer and the Trustee hereunder (other than the
right to indemnification) shall terminate upon termination of the
Trust Agreement and of the Trust Fund pursuant to the Trust
Agreement.
37. A new Section 12.13 (Request for Release) is hereby added to read as
follows:
Request for Release. When requesting a release of documents from the
Custodian, the Servicer shall use the form attached hereto as
Exhibit E.
A-8
38. A new Section 12.14 (Officer's Certificate) is hereby added to read as
follows:
(a) By February 28th of each year, or at any other time upon thirty (30)
days written request, an officer of the Servicer shall execute and deliver an
Officer's Certificate substantially in the form of Exhibit F attached hereto,
signed by the senior officer in charge of servicing of the Servicer or any
officer to whom that officer reports, to the Master Servicer and Depositor for
the benefit of such the Master Servicer and their respective officers, directors
and affiliates. Notwithstanding the foregoing, in the event that as to any year
a report on Form 10-K is not required to be filed with the Securities and
Exchange Commission with respect to the related securitization transaction for
the prior calendar year, then (i) the Depositor shall notify the Servicer of
that fact, and (ii) the Servicer shall not be required to provide the Officer's
Certificate described in this subsection (a).
A-9
EXHIBIT B
Servicing Agreement
See Tab 99.8
B-1
EXHIBIT C
Assignment and Assumption Agreement
[INTENTIONALLY OMITTED]
C-1
Exhibit D
Mortgage Loan Schedule
[INTENTIONALLY OMITTED]
D-1
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
-------------
[Date]
[Custodian]
[Address]
Attention: [ ]
In connection with the administration of the mortgages held by you as
Custodian under a certain Custodial Agreement dated as of May 1, 2003, between
JPMorgan Chase Bank, as Trustee, and you, as Custodian (the "Custodial
Agreement"), the undersigned Servicer hereby requests a release of the Mortgage
File held by you as Custodian with respect to the following described Mortgage
Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
___ 1. Mortgage Loan paid in full. (The Servicer hereby certifies that
all amounts received in connection with the loan have been or will be credited
to the Collection Account or the Certificate Account (whichever is applicable)
pursuant to the Trust Agreement.)
___ 2. Mortgage Loan being foreclosed.
___ 3. Mortgage Loan repurchased. (The Servicer hereby certifies that
the Purchase Price has been credited to the Collection Account or the
Certificate Account (whichever is applicable) pursuant to the Trust Agreement.)
___ 4. Other. (Describe.)
The undersigned acknowledges that the above Mortgage File will be held
by the undersigned in accordance with the provisions of the Trust Agreement and
will be returned to you within ten (10) days of our receipt of the Mortgage
File, except if the Mortgage Loan has been paid in full, or repurchased (in
which case the Mortgage File will be retained by us permanently).
E-1
Capitalized terms used herein shall have the meanings ascribed to them
in the Custodial Agreement.
-------------------------------------
CENDANT MORTGAGE CORPORATION
By:
--------------------------------
Name:
Title: Servicing Officer
E-2
EXHIBIT F
SEC CERTIFICATION
Structured Asset Securities Corporation
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx
Aurora Loan Services, Inc.
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000X
Xxxxxx, Xxxxxxxx 00000
Re: Structured Asset Securities Corporation, Mortgage Pass-Through Certificates,
Series 2003-37A
----------------------------------------------------------------------------
Reference is made to the Reconstituted Servicing Agreement, dated as of November
1, 2003 (the "Agreement"), by and between Xxxxxx Brothers Holdings Inc., as
seller and Cendant Mortgage Corporation, as servicer (the "Servicer"). I,
[identify the certifying individual], a [title] of the Servicer hereby certify
to Aurora Loan Services, Inc. (the "Master Servicer") and its respective
officers, directors and affiliates, 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 last day of the period
covered by the Annual Statement of Compliance.
3. Based on my knowledge, the Servicing Information required to be provided to
the Master Servicer by the Servicer under the Agreement has been provided
to the Master Servicer;
4. I am responsible for reviewing the activities performed by the Servicer
under the Agreement and based upon the review required under the Agreement,
and except as disclosed in the Annual Statement of Compliance, the Annual
Independent Certified Public Accountant's Servicing Report, or otherwise in
writing submitted to the Master Servicer by the Servicer, the Servicer has,
as of the last day of the period covered by the Annual Statement of
Compliance, fulfilled its obligations under the Agreement.
CENDANT MORTGAGE CORPORATION
Name: ____________________________
Title: ____________________________
Date: ____________________________
F-1
