Exhibit 99.6
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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 (the "Seller" or "Xxxxxx Brothers Holdings"), and GMAC
MORTGAGE CORPORATION, a Pennsylvania corporation (the "Servicer" or the
"Company"), having an office at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000,
recites and provides as follows:
RECITALS
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Bank") acquired certain fixed
and adjustable rate, conventional, 103% loan-to-value ratio loans from the
Servicer, which such mortgage loans were either originated or acquired by the
Servicer pursuant to (i) the Master Mortgage Loan Sale and Servicing Agreement,
dated as of February 1, 2003 or (ii) the Master Mortgage Loan Sale and Servicing
Agreement, dated as of December 1, 2003 (together, 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, 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 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, the Seller 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 the Seller pursuant to the Sale and Servicing Agreement.
WHEREAS, the Seller desires that the Servicer continue to service the
Mortgage Loans, and the Servicer has agreed to do so, subject to the rights of
the Seller (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, the Seller 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 such Mortgage Loans remain subject to the
provisions of the Trust Agreement and until the Transfer Date.
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WHEREAS, the Seller 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 the Seller 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, 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 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 U.S. Bank
National Association will act as custodian of the Mortgage Files for the Trustee
pursuant to a Custodial Agreement, dated May 1, 2004, between U.S. 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 the Seller under the Sale and Servicing Agreement
to enforce the obligations of the Servicer under the Sale and Servicing
Agreement and the term "Initial Owner" or "Owner" as used in the Sale and
Servicing Agreement in connection with any rights of the Initial Owner or Owner
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
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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 the Seller
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 2004-12H
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 2004-12H
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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 2004-12H
Telephone: 000-000-0000
Facsimile: 000-000-0000
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 Servicer at the following address:
GMAC Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Email: xxxx_xxxxxxxx@xxxxx.xxx
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
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Name: Xxxxxxxx Xxxxxx
Title: Authorized Signatory
GMAC MORTGAGE CORPORATION,
as Servicer
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Vice President
ACKNOWLEDGED BY:
AURORA LOAN SERVICES INC.,
as Master Servicer
By: /s/ E. Xxxx Xxxxxxxxxx
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Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
CITIBANK, N.A.,
as Trustee
By: /s/ Xxxxx Xxxxxxxx
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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 "Determination Date" in Article I is hereby amended in
its entirety to read as follows:
"Determination Date" means the 15th day (or if such 15th day is not a
Business Day, the Business Day immediately preceding such 15th day) of
the month of the related Remittance Date.
4. The definition of "Due Period" in Article I is hereby amended in its
entirety to read as follows:
"Due Period": With respect to each Remittance Date, the period
commencing on the second day of the month immediately preceding the
month of such Remittance Date and ending on the first day of the month
of such Remittance Date.
5. The definition of "Eligible Depository Institution" in Article I is hereby
amended in its entirety to read as follows:
"Eligible Depository Institution": Any of (i) a federal or
state-chartered depository institution the accounts of which are
insured by the FDIC and whose commercial paper, short-term debt
obligations or other short-term deposits are rated at least "A-1+" by
S&P if the deposits are to be held in the account for less than 30
days, or whose long-term unsecured debt obligations are rated at least
"AA-" by S&P if the deposits are to be held in the account for more
than 30 days, or (ii) the corporate trust department of a federal or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), which, in either case, has corporate trust
powers, acting in its fiduciary capacity, or (iii) Xxxxxx Brothers
Bank, FSB, a federal savings bank.
6. The definition of "Eligible Investments" in Article I is hereby amended in
its entirety to read as follows:
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"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 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;
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(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 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.
7. The definition of "Xxxxxx Xxx" is hereby added to Article I to immediately
follow the definition of "GMAC" and to read as follows:
"Xxxxxx Mae": The Government National Mortgage Association, or
any successor thereto.
8. The definition of "Mortgage Loan" in Article I is hereby amended in its
entirety to read as follows:
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"Mortgage Loan": An individual Mortgage Loan which has been purchased
from the Company 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.
9. 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 Company by Xxxxxx
Brothers Holdings pursuant to the Sale and Servicing Agreement.
10. The definition of "P&I Advance" in Article I is hereby amended in its
entirety to read as follows:
"P&I 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
P&I Advance, but only to the extent that such amount is expected, in
the reasonable judgment of the Company, to be recoverable from
collections or other recoveries in respect of such Mortgage Loan. To
the extent that the Company determines that any such amount is not
recoverable from collections or other recoveries in respect of such
Mortgage Loan, such determination shall be evidenced by a certificate
of a Servicing Officer delivered to the Master Servicer setting forth
such determination and the procedures and considerations of the Company
forming the basis of such determination, which shall include a copy of
any broker's price opinion and any other information or reports
obtained by the Company which may support such determinations.
11. The definition of "Prepayment Interest Shortfall" in Article I is hereby
amended in its entirety to read as follows:
"Prepayment Interest Shortfall": With respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part during any Due
Period, which Principal Prepayment was applied to such Mortgage Loan
prior to such Mortgage Loan's Due Date in such Due Period, the amount
of interest (net the related Servicing Fee for Principal Prepayments in
full) that would have accrued on the amount of such Principal
Prepayment during the period commencing on the date as of which such
Principal Prepayment was applied to such Mortgage Loan and ending on
the day immediately preceding such Due Date, inclusive.
12. The definition of "Qualified GIC" in Article I is hereby added to
immediately follow the definition of "Qualified Appraiser" and to read as
follows:
"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 Company 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 Company, the Company 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 Company's interest therein shall be
transferable to any successor Company 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.
13. The definition of "Servicing Fee" in Article I is hereby amended and
restated in its entirety to read as follows:
Servicing Fee: An amount equal to one-twelfth the product of (a) 0.25%
per annum (the "Servicing Fee Rate") and (b) the outstanding principal
balance of the Mortgage Loan. The Servicing Fee is payable solely from
the interest portion (including recoveries with respect to interest
from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds) of such Monthly Payment collected by the
Company or as otherwise provided under this Agreement.
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14. The parties hereto acknowledge that Section 2.03 (Custodial Agreement;
Delivery of Mortgage Loan Documents) shall be inapplicable to this
Agreement, as superseded by the provisions of the Custodial Agreement and
the Trust Agreement.
15. Section 4.01 (Company to Act as Servicer) is hereby amended and restated in
its entirety to read as follows:
From the date of origination of the related Mortgage Loans to
the related Closing Date, the Company shall have serviced the related
Mortgage Loans in accordance with Customary Servicing Procedures. From
and after the related Closing Date, the Company, 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 Company may deem necessary or desirable,
consistent with the terms of this Agreement and with Accepted Servicing
Practices.
Consistent with the terms of this Agreement, the Company 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 Company's reasonable and
prudent determination such waiver, modification, postponement or
indulgence is not materially adverse to the Owner, provided, however,
that (unless the Mortgagor is in default with respect to the Mortgage
Loan or such default is, in the judgment of the Company, imminent and
the Company has obtained the prior written consent of the Owner) the
Company 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 Company 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 Company shall be entitled to reimbursement for
such advances only to the same extent as for P&I Advances made pursuant
to Section 5.03 hereunder. Without limiting the generality of the
foregoing, the Company shall continue, and is hereby authorized and
empowered, to execute and deliver on behalf of itself and the Owner,
all instruments of satisfaction or cancellation, or of partial or full
release, discharge
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and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. If reasonably
required by the Company, the Owner shall furnish the Company with any
powers of attorney and other documents necessary or appropriate to
enable the Company 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 Company 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 Company 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 Company
shall employ procedures (including collection procedures) and exercise
the same care that it customarily employs and exercises in servicing
and administering mortgage loans for its own account, giving due
consideration to Customary Servicing Procedures where such practices do
not conflict with the requirements of this Agreement, and the Owner's
reliance on the Company.
Absent written consultation and approval by the Owner, as
specified in this Section 4.01, the Company may take actions relative
to the servicing and administration of the Mortgage Loans that are
consistent with Customary Servicing Procedures.
16. The parties hereto acknowledge that references to the "Owner" in the first
paragraph of Section 4.02 shall refer to the Master Servicer, except that
the expense of any environmental inspection or review at the request of the
Master Servicer shall be an expense of the Trust Fund.
17. The parties hereto acknowledge that (i) the Custodial Account referenced in
Section 4.04 shall be titled "GMAC Mortgage Corporation in trust for SASCO
2004-12H" and (ii) references to the Cutoff Date shall mean the close of
business on May 1, 2004.
18. The parties hereto acknowledge that (i) the Escrow Account referenced in
Section 4.06 shall be titled "GMAC Mortgage Corporation in trust for SASCO
2004-12H."
19. Section 4.14 (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:
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In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage Loan, the
Company 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 Company 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 Company has
received such an extension, then the Company 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
Company has not received such an extension and the Company 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
Company has received such an extension, and the Company is unable to sell
the REO Property within the period ending three months before the close of
the Extended Period, the Company 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 Company)
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 Company which would enable the Company, on behalf of the
Trust Fund, to request such grant of extension.
Notwithstanding any other provisions of this Agreement, no REO
Property acquired by the Trust Fund shall be rented (or allowed to continue
to be rented) or otherwise used by or on behalf of the Trust Fund in such a
manner or pursuant to any terms that would: (i) cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code; or (ii) subject any Trust REMIC to the imposition
of any federal income taxes on the income earned from such REO Property,
including any taxes imposed by reason of Sections 860F or 860G(c) of the
Code, unless the Company 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 Company of an offer to sell any REO
Property, the Company 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 Company 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 Company shall not proceed with such sale.
20. Section 5.02 (Statements to the Owner) is hereby amended and restated in
its entirety as follows:
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Section 5.02 Statements to the Master Servicer.
Not later than the tenth calendar day of each month, the Company
shall furnish to the Master Servicer (a) a monthly remittance and reporting
format in the format currently being used and agreed upon by the Company
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 Company 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 Company 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 Company
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.
21. Section 5.03 (P&I Advances by the Company) is hereby amended and restated
in its entirety as follows:
On the Business Day immediately preceding each Remittance Date,
the Company 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 P&I Advances shall be replaced by the Company 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
Company's obligation to make such P&I 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 Company deems such
P&I Advances to be unrecoverable, as evidenced by an Officer's Certificate
of the Company delivered to the Master Servicer.
22. Section 6.03 (Servicing Compensation) is hereby amended by adding the
following sentence at the end of such Section:
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The Company 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.
23. Section 6.04 (Annual Statement as to Compliance) is hereby amended by (i)
replacing "Owner" with "Xxxxxx Brothers Holdings and Master Servicer", (ii)
replacing "March 31 of each year" with "the 15th day of March of each year"
and (iii) replacing "March 31, 2004" with "March 15, 2005".
24. Section 6.05 (Annual Independent Public Accountants' Servicing Report) is
hereby amended by (i) replacing "March 31 of each year" with "the 15th day
of March of each year", (ii) replacing "March 31, 2004" with "March 15,
2005" and (iii) replacing "Owner" with "Xxxxxx Brothers Holdings and Master
Servicer".
25. A new Section 6.09 is hereby added to this Agreement to read as follows:
(a) 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 Company shall execute and deliver an Officer's Certificate
in the form of Exhibit D attached hereto, signed by an officer of the
Company, to the Master Servicer and the Depositor for the benefit of such
Master Servicer and such Depositor and their respective officers, directors
and affiliates.
26. Sections 8.01 (Indemnification; Third Party Claims) is hereby amended in
its entirety to read as follows:
The Company 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 Company to perform its duties and
service the Mortgage Loans in strict compliance with the terms of this
Agreement. The Company 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 Company
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 Company 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 Company to service and administer the
Mortgage Loans in strict compliance with the terms of this Agreement.
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The Trust Fund shall indemnify the Company 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 Company 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 Company 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.
27. Section 9.01 (Events of Default) is hereby amended as follows:
(a) Amending Subsection 9.01(vii) in its entirety to read as follows: "the
Company at any time is neither a Xxxxxx Mae or Xxxxxxx Mac approved
servicer, and the Master Servicer has not terminated the rights and
obligations of the Company under this Agreement and replaced the Company
with a Xxxxxx Mae or Xxxxxxx Mac approved servicer within 30 days of the
absence of such approval."
(b) Replacing the last paragraph thereof with the following:
Upon receipt by the Company of such written notice, all
authority and power of the Company under this Agreement, whether with
respect to the Mortgage Loans or otherwise, shall pass to and be vested
in a successor Company appointed by the Xxxxxx Brothers Holdings and
the Master Servicer. Upon written request from the Seller, the Company
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 Company's sole expense. The Company shall
cooperate with Xxxxxx Brothers Holdings and the Master Servicer and
such successor in effecting the termination of the Company'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 Company to the
Custodial Account or Escrow Account or thereafter received with respect
to the Mortgage Loans.
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28. The parties hereto acknowledge that the word "Owner" in Section 9.02
(Waiver of Defaults) shall refer to the "Master Servicer with the prior
consent of the Trustee."
29. Section 10.02 (Termination Without Cause) is hereby amended by replacing
the first paragraph thereof with the following paragraphs:
Section 10.02 Termination Without Cause.
This Agreement shall terminate upon: (i) the later of (a) the
distribution of the final payment or liquidation proceeds on the last
Mortgage Loan to the Trust Fund (or advances by the Company 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, or (ii) mutual consent of the Company, Xxxxxx Brothers
Holdings and the Master Servicer in writing or (iii) at the sole option
of the Xxxxxx Brothers Holdings, without cause, upon 30 days written
notice. Any such notice of termination shall be in writing and
delivered to the Company by registered mail to the address set forth at
the beginning of this Agreement. The Master Servicer, the Trustee and
the Company shall comply with the termination procedures set forth in
Article X.
In connection with any such termination referred to in clause
(ii) above, Xxxxxx Brothers Holdings will be responsible for
reimbursing the Company 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.
In connection with any such termination referred to in clause
(iii) above, Xxxxxx Brothers Holdings will be responsible for paying a
sum, as liquidated damages, in an amount equal to (I) two percent (2%)
of the aggregate Assumed Principal Balance of the Mortgage Loans (as
defined herein) if such written notice is received by the Company on or
before the Business Day five years from the date such Mortgage Loans
were sold by the Company to Xxxxxx Brothers Holdings or (II) one
percent (1%) of the aggregate Assumed Principal Balance of the Mortgage
Loans if such written notice is received by the Company after the
Business Day five years from the date such Mortgage Loans were sold by
the Company to Xxxxxx Brothers Holdings (either amount shall be
referred to as "Liquidated Damages").
30. Section 11.01 (Successor to the Company) is hereby amended in its entirety
to read as follows:
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Simultaneously with the termination of the Company's
responsibilities and duties under this Agreement pursuant to Sections
8.03, 9.01 or 10.01(a)(ii), the Master Servicer shall, in accordance
with the provisions of the Trust Agreement (i) succeed to and assume
all of the Company'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 Company under this Agreement with the
termination of the Company's responsibilities, duties and liabilities
under this Agreement. Any successor to the Company 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 Company under
this Agreement. In the event that the Company's duties,
responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned sections, the Company 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 Company
pursuant to the aforementioned sections shall not become effective
until a successor shall be appointed pursuant to this Section 11.01 and
shall in no event relieve the Company of the representations and
warranties made pursuant to Article III shall be applicable to the
Company notwithstanding any such resignation or termination of the
Company, 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 Company
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 Company shall cooperate with the Trustee and the
Master Servicer, as applicable, and such successor in effecting the
termination of the Company'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 Company to the Custodial Account or any Escrow Account
or thereafter received with respect to the Mortgage Loans.
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Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Trustee, the Company 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 Company under this Agreement, whereupon such successor
shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Company, with like
effect as if originally named as a party to this Agreement. Any
termination or resignation of the Company 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
Company arising out of the Company'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 Company 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 Company 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 Company.
Upon a successor's acceptance of appointment as such, the
Company 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, all reasonable
costs and expenses incurred in connection with any transfer of
servicing hereunder (whether as a result of termination or removal of
the Company or resignation of the Company 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 Company 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 Company from its own funds without reimbursement.
31. A new Section 11.14 is hereby added to read as follows:
Section 11.14 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 Company shall have the same
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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 Company
shall only take direction from the Master Servicer (if direction by the
Master Servicer is required under this Agreement) unless otherwise
directed by this Agreement. Notwithstanding the foregoing, all rights
and obligations of the Master Servicer and the Trustee hereunder (other
than the right to indemnification) 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 Exhibits 99.14 and 99.15
B-1
EXHIBIT C
Mortgage Loan Schedule
[INTENTIONALLY OMITTED]
C-1
EXHIBIT D
Officer's Certificate
Structured Asset Securities Corporation
745 7th Avenue, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Loan Services, Inc.
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000X
Xxxxxx, Xxxxxxxx 00000
Re: Structured Asset Securities Corporation, Mortgage Pass-Through
Certificates, Series 2004-12H
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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 GMAC 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 Structured Asset Securities
Corporation (the "Depositor"), and their respective officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed the information required to be delivered to the Master
Servicer pursuant to the Servicing Agreement (the "Servicing Information");
2. Based on my knowledge, the information relating to the Mortgage Loans
submitted by the Servicer in its monthly reporting packages delivered to
the Master Servicer which is contained in the reports on Form 8-K and the
annual report on Form 10-K with respect to the Transaction, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as
of the date of this certification;
3. Based on my knowledge, the Servicing Information required to be provided to
the Master Servicer by the Servicer under this Agreement has been provided
to the Master Servicer; and
4. I am responsible for reviewing the activities performed by the Servicer
under this Agreement and based upon the review required hereunder, and
except as disclosed in the Annual Statement of Compliance, the Annual
Independent Certified Public Accountant's Servicing Report and all
servicing reports, officer's certificates and other information relating to
the servicing of the Mortgage Loans submitted to the Master Servicer by the
Servicer, the Servicer has, as of this certification fulfilled its
obligations under this Agreement.
D-1
Name: ____________________________
Title: ____________________________
Date: ____________________________
D-2
EXHIBIT E
Assignment and Assumption Agreement
[INTENTIONALLY OMITTED]
E-1
