Exhibit 99.4
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EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into as
of the 1st day of May, 2004, by and between XXXXXX BROTHERS HOLDINGS INC., a
Delaware corporation ("Xxxxxx Brothers Holdings"), and CHASE MANHATTAN MORTGAGE
CORPORATION, a New Jersey corporation (the "Servicer" or the "Company"), having
an office at 000 Xxxx Xxxxxxxxx, Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000, recites and
provides as follows:
RECITALS
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Bank") acquired certain fixed and
adjustable rate, conventional loans from the Servicer, which such mortgage loans
were either originated or acquired by the Servicer pursuant to the Master
Mortgage Loan Purchase, Warranties and Servicing Agreement, dated as of April 1,
2004 (the "Sale and Servicing Agreement"), and annexed as Exhibit B hereto.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated May 1,
2004 (the "Assignment and Assumption Agreement"), annexed as Exhibit E hereto,
Xxxxxx Brothers Holdings acquired from the Bank all of the Bank's right, title
and interest in and to the mortgage loans currently serviced under the Sale and
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 Master Mortgage Loan Purchase Agreement.
WHEREAS, Xxxxxx Brothers Holdings has conveyed certain mortgage loans as
identified on Exhibit C hereto (the "Mortgage Loans") to Structured Asset
Securities Corporation, a Delaware special purpose corporation ("SASCO"), which
in turn has conveyed the Mortgage Loans to Citibank, N.A., as trustee (the
"Trustee"), pursuant to a trust agreement, dated as of May 1, 2004 (the "Trust
Agreement"), among the Trustee, Aurora Loan Services Inc., as master servicer
("Aurora," and, together with any successor master servicer appointed pursuant
to the provisions of the Trust Agreement, the "Master Servicer"), and SASCO.
WHEREAS, the Mortgage Loans are currently being serviced by the Servicer
for Xxxxxx Brothers Holdings pursuant to the Sale and Servicing Agreement.
WHEREAS, Xxxxxx Brothers Holdings desires that the Servicer continue to
service the Mortgage Loans, and the Servicer has agreed to do so, subject to the
rights of Xxxxxx Brothers Holdings (with the consent of the Master Servicer) to
terminate the rights and obligations of the Servicer hereunder as permitted
under Section 10.02 of the Sale and Servicing Agreement, as amended hereby and
subject to the other conditions set forth herein.
WHEREAS, Xxxxxx Brothers Holdings and the Servicer agree that the
provisions of the Sale and Servicing Agreement shall continue to 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
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such Mortgage Loans remain subject to the provisions of the Trust Agreement and
until the Transfer Date.
WHEREAS, Xxxxxx Brothers Holdings and the Servicer agree that if a
successor servicer is appointed pursuant to the terms of this Agreement, the
Servicer shall no longer service the Mortgage Loans and shall transfer servicing
of the Mortgage Loans to the successor servicer designated by Xxxxxx Brothers
Holdings 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 the conditions
specified herein to terminate for cause the rights and obligations of the
Servicer under this Agreement.
WHEREAS, Xxxxxx Brothers Holdings 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, Xxxxxx Brothers Holdings 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 Sale and Servicing
Agreement incorporated by reference herein (regardless of whether such terms are
defined in the Sale and Servicing Agreement), shall have the meanings ascribed
to such terms in the Trust Agreement.
2. Custodianship. The parties hereto acknowledge that Xxxxx Fargo Bank,
National Association will act as custodian of the Mortgage Files for the Trustee
pursuant to a Custodial Agreement, dated May 1, 2004, between Xxxxx Fargo Bank,
National Association and the Trustee.
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 Sale and Servicing Agreement,
except as otherwise provided herein and on Exhibit A hereto, and that the
provisions of the Sale and 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 and the SASCO 2004-12H
Trust Fund (the "Trust Fund") created pursuant to the Trust Agreement, shall
have the same rights as Xxxxxx Brothers Holdings under the Sale and Servicing
Agreement to enforce the obligations of the Servicer under the Sale and
Servicing Agreement and the term "Initial Purchaser" or "Purchaser" as used in
the Sale and Servicing Agreement in connection with any rights of the Initial
Purchaser or Purchaser shall refer to the Trust Fund or, as the
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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 9.01 of the Sale and Servicing Agreement.
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer assume any of the obligations of Xxxxxx Brothers Holdings under the
Sale and 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.
5. Representations. 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 in connection with the transactions
contemplated by the Trust Agreement and issuance of the Certificates issued
pursuant thereto. The Servicer hereby restates as of the Closing Date the
representations and warranties made in Section 3.01.
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:
0
XXXxxxxx Xxxxx Xxxx
Xxx Xxxx, Xxx Xxxx
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 2004-12H
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
Citibank, N.A.
000 Xxxx Xxxxxx
14th Floor, Xxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance-SASCO 0000-00X
Telephone: 000-000-0000
Facsimile: 000-000-0000
All notices required to be delivered to Xxxxxx Brothers Holdings hereunder
shall be delivered to Xxxxxx Brothers Holdings 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 Servicer at the following address:
Chase Manhattan Mortgage Corporation
000 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
with a copy to:
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General Counsel
Chase Manhattan Mortgage Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
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: Xxxxxxxx Xxxxxx
Title: Authorized Signatory
CHASE MANHATTAN MORTGAGE
CORPORATION, as Servicer and successor to
Chase Mortgage Company
By:
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
ACKNOWLEDGED BY:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:
-----------------------------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
CITIBANK, N.A.,
as Trustee
By:
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to the Sale and Servicing Agreement
1. Unless otherwise specified herein, any provisions of the Sale and
Servicing Agreement, including definitions, relating to Whole-Loan
Transfers, Pass-Through Transfers, Closing Dates, Cut-off Dates and
First Remittance Dates shall be disregarded. Unless otherwise specified
herein, for purposes of this Agreement, the exhibits to the Sale and
Servicing Agreement and all references to such exhibits shall also be
disregarded.
2. The definition of "Custodial Agreement" in Article I is hereby amended
in its entirety to read as follows:
"Custodial Agreement" means the Trust Agreement.
3. The definition of "Eligible Investments" in Article I is hereby added
after the definition of Eligible Institution to read as follows:
"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 Mae, Xxxxxx Xxx
or Xxxxxxx Mac with any
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registered broker/dealer subject to Securities Investors'
Protection Corporation jurisdiction or any commercial bank
insured by the FDIC, if such broker/dealer or bank has an
uninsured, unsecured and unguaranteed obligation rated by each
Rating Agency in its highest short-term rating category;
(iv) securities bearing interest or sold at a
discount issued by any corporation incorporated under the laws
of the United States of America or any state thereof which
have a credit rating from each Rating Agency, at the time of
investment or the contractual commitment providing for such
investment, at least equal to one of the two highest long-term
credit rating categories of each Rating Agency; provided,
however, that securities issued by any particular corporation
will not be Eligible Investments to the extent that investment
therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of the
Trust Fund to exceed 20% of the sum of the aggregate principal
balance of the Mortgage Loans; provided, further, that such
securities will not be Eligible Investments if they are
published as being under review with negative implications
from either 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 each 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
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if such instrument evidences either (1) a right to receive
only interest payments with respect to the obligations
underlying such instrument or (2) 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.
4. The definition of "Xxxxxx Xxx" is hereby added to Article I to
immediately follow the definition of "GAAP" and to read as follows:
"Xxxxxx Mae": The Government National Mortgage Association,
or any successor thereto.
5. The definition of "Monthly Advance" is hereby amended to read as follows:
"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 Seller,
to be recoverable from collections or other recoveries in
respect of such Mortgage Loan.
6. The definition of "Mortgage Loan" in Article I is hereby amended in its
entirety to read as follows:
"Mortgage Loan": An individual Mortgage Loan which has been
purchased from the Seller by Xxxxxx Brothers Holdings and is
subject to this Agreement being identified on the Mortgage
Loan Schedule to this Agreement, which Mortgage Loan includes
without limitation the Mortgage Loan documents, the monthly
reports, 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.
7. 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
attached as Exhibit C to this Agreement setting forth certain
information with respect to the Mortgage Loans purchased from
the Seller by Xxxxxx Brothers Holdings pursuant to the Sale
and Servicing Agreement.
8. The definition of "Qualified GIC" in Article I is hereby added to
immediately follow the definition of "Qualified Appraiser" and to read
as follows:
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"Qualified GIC": A guaranteed investment contract or surety
bond providing for the investment of funds in the Custodial
Account and insuring a minimum, fixed or floating rate of
return on investments of such funds, which contract or surety
bond shall:
(a) be an obligation of an insurance company or other
corporation whose long-term debt is rated by each Rating
Agency in one of its two highest rating categories or, if such
insurance company has no long-term debt, whose claims paying
ability is rated by each Rating Agency in one of its two
highest rating categories, and whose short-term debt is rated
by each Rating Agency in its highest rating category;
(b) provide that the Seller may exercise all of the
rights under such contract or surety bond without the
necessity of taking any action by any other Person;
(c) provide that if at any time the then-current
credit standing of the obligor under such guaranteed
investment contract is such that continued investment pursuant
to such contract of funds would result in a downgrading of any
rating of the Seller, the Seller shall terminate such contract
without penalty and be entitled to the return of all funds
previously invested thereunder, together with accrued interest
thereon at the interest rate provided under such contract to
the date of delivery of such funds to the Trustee;
(d) provide that the Seller's interest therein shall
be transferable to any successor Seller or the Master Servicer
hereunder; and
(e) provide that the funds reinvested thereunder and
accrued interest thereon be returnable to the Custodial
Account, as the case may be, not later than the Business Day
prior to any Determination Date.
9. The parties hereto acknowledge that the Mortgage Loans are in the
custody of the Custodian as described in the Custodial Agreement and
the Trust Agreement.
10. Section 4.01 (Seller to Act as Servicer) is hereby amended by replacing
the first, second and third paragraphs thereof with the following:
From the date of origination of the related Mortgage
Loans to the related Closing Date, the Seller shall have
serviced the related Mortgage Loans in accordance with the
Applicable Requirements. From and after the related Closing
Date, the Seller, as an independent contractor, shall service
and administer the Mortgage Loans pursuant to this Agreement
and shall have full power and authority, acting alone, to do
any and all things in connection with such servicing and
administration which the Seller may deem necessary or
desirable, consistent with the terms of this Agreement and
with Accepted Servicing Practices.
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Consistent with the terms of this Agreement, the
Seller may waive, modify or vary any term of any Mortgage Loan
or consent to the postponement of strict compliance with any
such term or in any manner grant indulgence to any Mortgagor
if in the Seller's reasonable and prudent determination such
waiver, modification, postponement or indulgence is not
materially adverse to the Purchaser, provided, however, that
(unless the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of the
Seller, imminent and the Seller has obtained the prior written
consent of the Purchaser or the Master Servicer) the Seller
shall not permit any modification with respect to any Mortgage
Loan 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. With respect to a Reconstitution
Agreement, in the event of any such modification which permits
the deferral of interest or principal payments on any Mortgage
Loan, the Seller shall, on the Business Day immediately
preceding the Remittance Date in any month in which any such
principal or interest payment has been deferred, deposit in
the Custodial Account from its own funds, in accordance with
Section 4.04, the difference between (a) 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 (b) the amount paid by the Mortgagor. With
the approval of the Master Servicer, the Seller shall be
entitled to reimbursement for such advances only to the same
extent as for Monthly Advances made pursuant to Section 5.03
hereunder. Without limiting the generality of the foregoing,
the Seller shall continue, and is hereby authorized and
empowered, to execute and deliver on behalf of itself and the
Purchaser, 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. If reasonably required by
the Seller, the Purchaser shall furnish the Seller with any
powers of attorney and other documents necessary or
appropriate to enable the Seller to carry out its servicing
and administrative duties under this Agreement.
Promptly after the execution of any assumption,
modification, consolidation or extension of any Mortgage Loan,
the Seller shall forward to the Master Servicer copies of any
documents evidencing such assumption, modification,
consolidation or extension. Notwithstanding anything to the
contrary contained in this Agreement, the Seller 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.
In servicing and administering the Mortgage Loans,
the Seller shall employ procedures (including collection
procedures) and exercise the same care that it customarily
employs and exercises in servicing and administering mortgage
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loans for its own account, giving due consideration to the
Applicable Requirements where such practices do not conflict
with the requirements of this Agreement, and the Purchaser's
reliance on the Seller.
Absent written consultation and approval by the
Purchaser, as specified in this Section 4.01, the Seller may
take actions relative to the servicing and administration of
the Mortgage Loans that are consistent with the Applicable
Requirements.
11. The parties hereto acknowledge that (i) the Custodial Account
referenced in Section 4.04 shall be titled "Chase Manhattan Mortgage
Corporation in trust for the SASCO 2004-12H Trust Fund" and (ii)
references to the Cut-off Date shall mean the close of business on May
1, 2004. The parties hereto agree that all funds in such accounts shall
be invested in Eligible Investments to the extent invested.
12. The parties hereto acknowledge that (i) the Escrow Account referenced
in Section 4.06 shall be titled "Chase Manhattan Mortgage Corporation
in trust for the SASCO 2004-12H Trust Fund." The parties hereto agree
that all funds in such accounts shall be invested in Eligible
Investments to the extent invested.
13. Section 4.13 (Title, Management and Disposition of REO Property) is
hereby amended by (i) adding two new paragraphs after the second
paragraph thereof to read as follows:
In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage Loan, the
Seller 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 Seller has applied for and received a grant of extension
from the Internal Revenue Service to the effect that, under the REMIC
Provisions and any relevant proposed legislation and under applicable
state law, the applicable Trust REMIC may hold REO Property for a
longer period without adversely affecting the REMIC status of such
REMIC or causing the imposition of a federal or state tax upon such
REMIC. If the Seller has received such an extension, then the Seller
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 Seller has not received such an
extension and the Seller 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 Seller has received such an
extension, and the Seller is unable to sell the REO Property within the
period ending three months before the close of the Extended Period, the
Seller 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 Seller) 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 Seller which would enable the Seller, on behalf of the
Trust Fund, to request such grant
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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 Seller has agreed to
indemnify and hold harmless the Trust Fund with respect to the
imposition of any such taxes.
(ii) adding the following to the end of such Section:
Prior to acceptance by the Seller of an offer to sell any REO
Property, the Seller 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 Seller in writing, within five (5) days after its receipt
of the related Notice of Sale, that it disapproves of the related sale,
in which case the Seller shall not proceed with such sale.
14. Section 5.02 (Statements to the Purchaser) is hereby amended and
restated in its entirety as follows:
Section 5.02 Statements to the Master Servicer.
Not later than the tenth calendar day of each month, the
Seller shall furnish to the Master Servicer (a) a monthly remittance
and reporting format in the format currently being used and agreed upon
by the Seller and by the Master Servicer as to the accompanying
remittance and the period ending on the last day of the preceding
Determination Date and (b) all such information required pursuant to
clause (a) above on a magnetic tape or other similar media reasonably
acceptable to the Master Servicer.
Beginning with calendar year 2005, the Seller shall prepare
and file any and all tax returns, information statements or other
filings for the portion of the tax year 2004 and the portion of
subsequent tax years for which the Seller has serviced some or all of
the Mortgage Loans hereunder as such returns, information statements or
other filings are required to be delivered to any governmental taxing
authority or to the Master Servicer pursuant to any applicable law with
respect to the Mortgage Loans and the transactions contemplated hereby.
In addition, the Seller shall provide the Master Servicer with such
information concerning the Mortgage Loans as is necessary for the
Master Servicer to prepare the Trust Fund's federal income tax return
as the Master Servicer may reasonably request from time to time.
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15. Section 5.03 (Monthly Advances by the Seller) is hereby amended and
restated in its entirety as follows:
Section 5.03 Monthly Advances by the Seller.
On the Business Day immediately preceding each Remittance
Date, the Seller shall deposit in the Custodial Account from its own
funds an amount equal to all Monthly Payments (with interest adjusted
to the Mortgage Loan Remittance Rate) 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 4.01. Any amounts held for
future distribution and so used to make Monthly Advances shall be
replaced by the Seller 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. The Seller'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 Seller deems such Monthly
Advances to be unrecoverable, as evidenced by an Officer's Certificate
of the Seller delivered to the Master Servicer.
16. Section 6.03 (Servicing Compensation) is hereby amended by adding the
following sentence at the end of such Section:
The Seller 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.
17. Section 6.04 (Annual Statement as to Compliance) is hereby amended by
(i) replacing "Purchaser" with "Xxxxxx Brothers Holdings and Master
Servicer" in paragraph (a) and (ii) restating paragraph (b) in its
entirety to read as follows:
(b) By March 15th of each year (or if not a Business Day, the
immediately preceding Business Day), commencing with March 15, 2005, an officer
of the Seller shall execute and deliver an Officer's Certificate in the form of
Exhibit D attached hereto, signed by an officer of the Seller, to the Master
Servicer and the Depositor for the benefit of such Master Servicer and such
Depositor and their respective officers, directors and affiliates.
18. Section 6.05 (Annual Independent Certified Public Accountants'
Servicing Report) is hereby amended by replacing "Purchaser" with
"Xxxxxx Brothers Holdings and Master Servicer."
19. The parties hereto acknowledge that Section 6.07 (Annual Officer's
Certificate) shall be inapplicable to this Agreement.
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20. Sections 8.01 (Indemnification; Third Party Claims) is hereby amended
in its entirety to read as follows:
The Seller shall indemnify the Trust Fund, the
Trustee and the Master Servicer and hold each of them harmless
against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related
costs, judgments and any other costs, fees and expenses that
any of such parties may sustain directly resulting from the
failure of the Seller to perform its duties and service the
Mortgage Loans in strict compliance with the terms of this
Agreement. The Seller immediately shall notify Xxxxxx Brothers
Holdings, the Master Servicer and the Trustee or any other
relevant party if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans, assume (with
the prior written consent of the indemnified party) the
defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge
and satisfy any judgment or decree which may be entered
against it or any of such parties in respect of such claim.
The Seller shall follow any written instructions received from
the Trustee in connection with such claim. The Trustee, from
the assets of the Trust Fund, promptly shall reimburse the
Seller for all amounts advanced by it pursuant to the
preceding sentence except when the claim is in any way relates
to the failure of the Seller to service and administer the
Mortgage Loans in strict compliance with the terms of this
Agreement.
The Trust Fund shall indemnify the Seller and hold it
harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other costs, fees
and expenses that the Seller may sustain in any way related to
the failure of the Trustee or the Master Servicer to perform
its duties in compliance with the terms of this Agreement.
In the event a dispute arises between an indemnified
party and the Seller with respect to any of the rights and
obligations of the parties pursuant to this Agreement and such
dispute is adjudicated in a court of law, by an arbitration
panel or any other judicial process, then the losing party
shall indemnify and reimburse the winning party for all
attorney's fees and other costs and expenses related to the
adjudication of said dispute.
21. Section 9.01 (Events of Default) is hereby amended as follows:
(a) Amending Subsection 9.01(vi) in its entirety to read as follows:
"the Seller at any time is neither a XXXXXX MAE or FHLMC approved
servicer, and the Master Servicer has not terminated the rights and
obligations of the Seller under this Agreement and replaced the Seller
with a Xxxxxx Xxx or Xxxxxxx Mac approved servicer within 30 days of
the absence of such approval."
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(b) Replacing the language following Subsection 9.01(ix) in its
entirety with the following:
Upon receipt by the Seller of such written notice,
all authority and power of the Seller under this Agreement,
whether with respect to the Mortgage Loans or otherwise, shall
pass to and be vested in a successor Seller appointed by the
Xxxxxx Brothers Holdings and the Master Servicer. Upon written
request from the Seller, the Seller 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, 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 Seller's
sole expense. The Seller shall cooperate with Xxxxxx Brothers
Holdings and the Master Servicer and such successor in
effecting the termination of the Seller'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 Seller to the
Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
22. The parties hereto acknowledge that the word "Purchaser" in Section
9.02 (Waiver of Defaults) shall refer to the "Master Servicer with the
prior consent of the Trustee."
23. Section 10.01 (Termination) is hereby amended in its entirety with the
following:
This Agreement shall terminate: (i) upon the later of
(a) the distribution of the final payment or liquidation
proceeds on the last Mortgage Loan to the Trust Fund (or
advances by the Seller 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) upon mutual consent of the Seller, Xxxxxx Brothers
Holdings and the Master Servicer in writing, (iii) at the sole
option of the Xxxxxx Brothers Holdings, without cause, upon 30
days written notice or (iv) in accordance with this Agreement
with cause. Any such notice of termination shall be in writing
and delivered to the Seller by registered mail to the address
set forth at the beginning of this Agreement. The Master
Servicer, the Trustee and the Seller shall comply with the
termination procedures set forth in Article X.
In connection with any such termination referred to
in clause (ii) or (iii) above, Xxxxxx Brothers Holdings will
be responsible for reimbursing the Seller for all unreimbursed
out-of-pocket Servicing Advances within 15 Business Days
following the date of termination and other reasonable and
necessary out-of-pocket costs associated with any transfer of
servicing.
24. Section 12.01 (Successor to the Seller) is hereby amended in its
entirety to read as follows:
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Simultaneously with the termination of the Seller's
responsibilities and duties under this Agreement pursuant to
Sections 4.13, 8.04, 9.01, 10.01 or 10.02 (ii), the Master
Servicer shall, in accordance with the provisions of the Trust
Agreement (i) succeed to and assume all of the Seller's
responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor meeting the eligibility
requirements of this Agreement and (iii) and which shall
succeed to all rights and assume all of the responsibilities,
duties and liabilities of the Seller under this Agreement with
the termination of the Seller's responsibilities, duties and
liabilities under this Agreement. Any successor to the Seller
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, 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 Xxxxxx
Brothers Bank, as applicable, may make such arrangements for
the compensation of such successor out of payments on the
Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that
permitted the Seller under this Agreement. In the event that
the Seller's duties, responsibilities and liabilities under
this Agreement should be terminated pursuant to the
aforementioned sections, the Seller 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 Seller 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 Seller of the
representations and warranties made pursuant to Section 3.01.
Such representations and warranties shall be applicable to the
Seller notwithstanding any such resignation or termination of
the Seller, 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 Seller 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 Seller shall cooperate with the Trustee and
the Master Servicer, as applicable, and such successor in
effecting the termination of the Seller'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
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credited by the Seller 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 Seller
and the Master Servicer an instrument (i) accepting such
appointment, wherein the successor shall make an assumption of
the due and punctual performance and observance of each
covenant and condition to be performed and observed by the
Seller under this Agreement, whereupon such successor shall
become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Seller,
with like effect as if originally named as a party to this
Agreement. Any termination or resignation of the Seller or
termination of this Agreement pursuant to Sections 10.01 or
10.02 shall not affect any claims that the Master Servicer or
the Trustee may have against the Seller arising out of the
Seller's actions or failure to act prior to any such
termination or resignation.
Within three (3) Business Days of the appointment of
a successor servicer, the Seller shall deliver 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 Seller
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 Seller.
Upon a successor's acceptance of appointment as such,
the Seller shall notify the Trustee and Master Servicer of
such appointment in accordance with the notice procedures set
forth herein.
Except as otherwise provided in this Agreement, if
the Servicer is terminated for cause hereunder, all reasonable
costs and expenses incurred in connection with any transfer of
servicing hereunder (whether as a result of termination or
removal of the Seller or resignation of the Seller or
otherwise), including, without limitation, the costs and
expenses of the Master Servicer or any other Person in
appointing a successor servicer, or of the Master Servicer in
assuming the responsibilities of the Seller hereunder, or of
transferring the Servicing Files and the other necessary data
to the successor servicer shall be paid by the terminated,
removed or resigning Seller from its own funds without
reimbursement. Any such costs and expenses not borne by the
Servicer hereunder shall be borne by the Trust Fund.
25. A new Section 12.20 is hereby added to read as follows:
Section 12.20 Intended Third Party Beneficiaries.
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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 Seller 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
Seller 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.
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EXHIBIT B
Sale and Servicing Agreement
See Exhibit 99.12
B-1
EXHIBIT C
Mortgage Loan Schedule
[INTENTIONALLY OMITTED]
C-1
EXHIBIT D
Officer's Certificate
Structured Asset Securities Corporation
c/o Aurora Loan Services, Inc.
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000X
Xxxxxx, Xxxxxxxx 00000
Aurora Loan Services, Inc.
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000X
Xxxxxx, Xxxxxxxx 00000
Re: Structured Asset Securities Corporation, Mortgage Pass-Through
Certificates, Series 2004-12H
Reference is made to the Reconstituted Servicing Agreement, dated as of May 1,
2004 (the "Agreement"), by and among Xxxxxx Brothers Holdings Inc., as seller,
and Chase Manhattan Mortgage Corporation, as servicer (the "Servicer"). The
Servicer hereby certifies to Aurora Loan Services, Inc. (the "Master Servicer")
and Structured Asset Securities Corporation (the "Depositor"), and their
respective officers, directors and affiliates, that:
1. Based on our knowledge, the information prepared by the Servicer and
relating to the mortgage loans serviced by the Servicer and provided by
the Servicer to the Master Servicer in its reports to the Master
Servicer is accurate and complete in all material respects as of the
last day of the period covered by such report;
2. Based on our knowledge, the servicing information required to be
provided to the Master Servicer by the Servicer pursuant to the
Agreement has been provided to the Master Servicer;
3. Based upon the review required under the Agreement, and except as
disclosed in its reports, the Servicer as of the last day of the period
covered by such reports has fulfilled its obligations under the
Agreement; and
4. The Servicer has disclosed to its independent auditor, who issues
the independent auditor's report on the Uniform Single Attestation
Program for Mortgage Bankers for the Servicer, any significant
deficiencies relating to the Servicer's compliance with minimum
servicing standards.
CHASE MANHATTAN MORTGAGE
CORPORATION, as Servicer
D-1
By:
------------------------------
Name:
Title:
D-2
EXHIBIT E
Assignment and Assumption Agreement
[INTENTIONALLY OMITTED]
E-1
