Exhibit 99.10
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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
WASHINGTON MUTUAL BANK, FA, a savings association organized under the laws of
the United States (the "Servicer"), recites and provides as follows:
RECITALS
WHEREAS, AIG Centre Capital Group Inc. ("AIG"), successor in interest
to Centre Capital Group, Inc. ("CCGI"), acquired certain first lien, fixed and
adjustable rate, conventional mortgage loans on a servicing-retained basis from
the Servicer, which mortgage loans were either originated or acquired by the
Servicer.
WHEREAS, such mortgage loans are currently being serviced by the
Servicer for CCGI pursuant to a Servicing Agreement (the "Servicing Agreement"),
dated as of February 1, 2004 and annexed as Exhibit B hereto, by and between
CCGI, as owner, and the Servicer, as servicer.
WHEREAS, pursuant to the Master Mortgage Loan Purchase and Warranties
Agreement, dated as of February 1, 2002 (the "Master Mortgage Loan Purchase
Agreement"), and annexed as Exhibit C hereto, Xxxxxx Brothers Bank, FSB (the
"Bank") has purchased or received from AIG all of AIG's, as successor in
interest to CCGI, right, title and interest in and to certain of the mortgage
loans currently serviced under the Servicing Agreement (hereinafter, the
"Mortgage Loans") and assumed for the benefit of the Servicer the obligations of
AIG as owner under such Agreement.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated May
1, 2004 (the "Assignment and Assumption Agreement") annexed as Exhibit F hereto,
the Seller acquired from the Bank all of the Bank's right, title and interest in
and to the mortgage loans currently serviced under the Servicing Agreement and
assumed for the benefit of each of the Servicer and the Bank the rights and
obligations of the Bank as owner of such mortgage loans pursuant to the Master
Mortgage Loan Purchase Agreement and the Servicing Agreement.
WHEREAS, the Seller has conveyed certain of the Mortgage Loans, as
identified on Exhibit D hereto (the "Serviced Mortgage Loans"), to Structured
Asset Securities Corporation, a Delaware special purpose corporation ("SASCO"),
which in turn has conveyed the Serviced Mortgage Loans to Citibank, N.A. (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 Seller desires that the Servicer continue to service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
rights of the Seller and the Master Servicer to terminate the rights and
obligations of the Servicer hereunder as set forth herein and to the other
conditions set forth herein.
WHEREAS, the Seller and the Servicer agree that the provisions of the
Servicing Agreement shall continue to apply to the Serviced Mortgage Loans, but
only to the extent provided herein and that this Agreement shall govern the
servicing of the Serviced Mortgage Loans for so long as such Serviced Mortgage
Loans remain subject to the provisions of the Trust Agreement.
WHEREAS, the Master Servicer and any successor master servicer shall be
obligated, among other things, to supervise the servicing of the Serviced
Mortgage Loans on behalf of the Trustee, and shall have the right under the
conditions specified herein to terminate for cause the rights and obligations of
the Servicer under this Agreement.
WHEREAS, the Seller and the Servicer intend that each of the Master
Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Seller and the Servicer hereby
agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this
Agreement, including Exhibit A hereto and any provisions of the Servicing
Agreement incorporated by reference herein, shall have the meanings ascribed to
such terms in the Servicing Agreement or the Mortgage Loan Purchase and Sale
Agreement among the Servicer, Washington Mutual Bank fsb, Washington Mutual Bank
and AIG, dated as of February 1, 2004 (the "Purchase Agreement"), as the case
may be.
Notwithstanding the foregoing, the term "Agreement" when used in the
Servicing Agreement or the Purchase Agreement shall have the meaning given to
such term in the Servicing Agreement or the Purchase Agreement, as the case may
be.
2. Custodianship. The parties hereto acknowledge that Xxxxx Fargo Bank,
National Association will act as custodian of the Collateral Files of the
Serviced Mortgage Loans for the Trustee.
3. Servicing. The Servicer agrees, with respect to the Serviced
Mortgage Loans, to perform and observe the duties, responsibilities and
obligations that are to be performed and observed under the provisions of the
Servicing Agreement, except as otherwise provided herein and on Exhibit A
hereto, and that the provisions of the Servicing Agreement, as so modified and
incorporated by reference herein, are and shall be a part of this Agreement to
the same extent as if set forth herein in full. Pursuant to Section 2.17 of the
Servicing Agreement, the Servicer acknowledges that a REMIC election has been or
will be made with respect to the Trust, and the Servicer shall comply with the
provisions of Section 2.17 of the Servicing Agreement with respect to the REMIC
provisions
4. Trust Cut-off Date. The parties hereto acknowledge that by operation
of Section 2.5 and Section 3.1 of the Servicing Agreement, the remittance on
June 18, 2004 to the SASCO 2004-12H Trust Fund (the "Trust Fund") is to include
principal due after May 1, 2004 (the "Trust Cut-off Date") plus interest, at the
Net Rate collected during the advancing period exclusive of any portion thereof
allocable to a period prior to the Trust Cut-off Date, with the adjustments
specified in Section 3.1 of the Servicing Agreement.
5. 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 Serviced Mortgage Loans in accordance with the provisions
of this Agreement. The Master Servicer, acting on behalf of the Trustee and the
Trust Fund created pursuant to the Trust Agreement, shall have the same rights
as the Seller, as owner, under the Servicing Agreement to enforce the
obligations of the Servicer under the Servicing Agreement and the term "Owner"
as used in the Servicing Agreement in connection with any rights of the 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 with respect to the
Servicer's indemnification of the Trustee and the Trust Fund, or 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 and
the provisions of the Servicing Agreement to the extent unmodified or unamended
herein 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
Article 6 of the Servicing Agreement (such Article 6 and Article 7 of the
Servicing Agreement remaining unmodified except for the right to terminate with
respect to the Serviced Mortgage Loans being vested in the Master Servicer
pursuant to this Agreement and as expressly described in Exhibit A hereto).
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer assume any of the obligations of the Owner under the Servicing
Agreement and 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.
6. No Representations. Neither the Servicer nor the Master Servicer
shall be obligated or required to make any representations or warranties
regarding the characteristics of the Serviced Mortgage Loans in connection with
the transactions contemplated by the Trust Agreement and issuance of the
certificates (the "Certificates") issued pursuant thereto. Notwithstanding the
preceding sentence, the Servicer hereby restates and remakes to the Seller, the
Owner, the Master Servicer, the Trustee and the Trust Fund each representation
and warranty in Section 5.7 of the Servicing Agreement as of May 1, 2004.
7. Waiver and Amendment. The parties hereto agree that by execution of
this Agreement, the Servicer has waived or agreed to modification or amendment
of, with respect to the Serviced Mortgage Loans, certain of the Servicer's
rights that it has pursuant to the provisions of the Servicing Agreement (the
"Waiver"). The Waiver shall extend only to the Serviced Mortgage Loans serviced
under this Agreement, and shall not constitute a waiver or modification of any
of the Servicer's rights under any other provision of the Servicing Agreement
with respect to Mortgage Loans purchased pursuant to the Purchase Agreement
other than the Serviced Mortgage Loans, waive any default by the Owner or impair
any right of the Servicer arising under this Agreement or the Servicing
Agreement, in each case except to the extent expressly so waived in this Section
7. Except as otherwise provided in this Agreement with respect to the Serviced
Mortgage Loans, the Servicing Agreement shall remain in full force and effect.
Notwithstanding the foregoing and with respect to the Serviced Mortgage
Loans, the Servicer shall continue to be entitled to (i) collect its servicing
compensation (including, without limitation, its Servicing Fee), (ii) receive
reimbursement for advances (including, without limitation, Monthly Advances and
Servicing Advances), and (iii) timely receive all or any portion of the related
Collateral Files in connection with its performance of servicing activities
(including, without limitation, in connection with the processing of any
satisfaction or release of any Serviced Mortgage Loans), in accordance with the
terms and conditions of the Servicing Agreement. The Servicer shall be entitled
to enforce the rights set forth in the preceding sentence against the Trust Fund
as the Owner of the Serviced Mortgage Loans.
8. 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/ALS
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 Number: 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 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 each of the following addresses:
Washington Mutual Bank, FA
1201 Third Avenue, WMT 0511
Xxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Washington Mutual Xxxx, XX
00000 Xxxxxxx Xx. (Mail Stop N070205)
Xxxxxxxxxx, XX 00000
Attention: Vice President, Investor Reporting
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Washington Mutual Bank, FA
0000 XxXxxxxxxx Xxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: Vice President, Investor Reporting
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
9. 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.
10. 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.
[SIGNATURE PAGES IMMEDIATELY FOLLOW]
Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Owner
By: /s/ Xxxxxxxx Xxxxxx
--------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Signatory
WASHINGTON MUTUAL BANK, FA,
as Servicer
By:
------------------------
Name:
Title:
ACKNOWLEDGED BY:
AURORA LOAN SERVICES INC.,
as Master Servicer
By: /s/ E. Xxxx Xxxxxxxxxx
----------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
CITIBANK, N.A.,
as Trustee
By: /s/ Xxxxx Xxxxxxxx
------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to the Servicing Agreement
1. A new definition of "Best Efforts" is hereby added to Article 1 to
immediately follow the definition of "Applicable Requirements," to read
as follows:
Best Efforts: Efforts determined to be reasonably diligent by
the Servicer in its reasonable discretion. Such efforts do not
require the Servicer to enter into any litigation, arbitration
or other legal or quasi-legal proceeding, nor do they require
the Servicer to advance or expend fees or sums of money in
addition to those specifically set forth in this Agreement.
2. The definition of "Determination Date" in Article 1 is hereby amended
and restated in its entirety, to read as follows:
Determination Date: The fifteenth (15th) day of the calendar
month of the related Monthly Remittance Date (or if such day
is not a Business Day, the Business Day immediately preceding
such day).
3. A new definition of "Mortgage Loan" is hereby added to Article 1 to
immediately follow the definition of "Mortgage Interest Rate" to read
as follows:
Mortgage Loan: An individual servicing retained Mortgage Loan
which has been purchased from Washington Mutual Bank FA,
Washington Mutual Bank fsb or Washington Mutual Bank by AIG
and that is subject to this Agreement by being identified on
the Mortgage Loan Schedule to this Agreement, which mortgage
loan includes without limitation the rights to the mortgage
loan documents, the monthly reports, Principal Prepayments,
Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage
Loan.
4. A new definition of "Mortgage Loan Schedule" is hereby added to Article
1 to immediately follow the definition of "Mortgage Loan," to read as
follows:
Mortgage Loan Schedule: The schedule of Mortgage Loans setting
forth certain information with respect to the Mortgage Loans
purchased from the Washington Mutual Bank, FA, Washington
Mutual Bank fsb or Washington Mutual Bank by AIG, which
Mortgage Loan Schedule is attached as Exhibit D to this
Reconstituted Servicing Agreement.
5. The definition of "Qualified Depository" is hereby amended and restated
in its entirety to read as follows:
Qualified Depository: Any of (i) a depository the accounts of
which are insured by the FDIC and the debt obligations of
which are rated AA (or its equivalent) or better by each
Rating Agency; (ii) the corporate trust department of any bank
the debt obligations of which are rated at least A-1 or its
equivalent by each Rating Agency; or (iii) the Servicer, so
long as the long-term unsecured debt obligations of the
Servicer are acceptable to either Rating Agency.
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6. A new definition of "Rating Agency" is hereby added to Article 1 to
immediately follow the definition of "Qualified Depository," to read as
follows:
Rating Agency: Either of Xxxxx'x or S&P, or any successor of
the foregoing.
7. Section 2.1 (Identification of Mortgage Loans; Servicer to Act as
Servicer) is hereby amended by adding the following to the end of
Subsection (c):
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Servicer
shall forward to the Master Servicer copies of any documents
evidencing such assumption, modification, consolidation or
extension.
8. Section 2.3 (Collection of Mortgage Loan Payments) is hereby amended by
replacing the words "Continuously from the related Closing Date until
the principal and interest on all of the Mortgage Loans are paid in
full," with "Continuously from May 1, 2004 until the date the Mortgage
Loans cease to be subject to this Agreement."
9. Section 2.4 (Establishment of Account; Deposits in Account) is hereby
amended by: replacing the words "for Xxxxxx Brothers Bank, FSB, as
Owner, and any successor Owner" with the words "for SASCO 2004-12H
Trust Fund and various Mortgagors."
10. Section 2.5 (Permitted Withdrawals from the Account) is hereby amended
by deleting the word "and" at the end of clause (vii), by replacing the
period at the end of clause (viii) with a semicolon and by adding the
following new clause (ix):
(ix) to invest funds in the Account in Permitted Investments in
accordance with Section 2.4(d).
11. Section 2.6 (Establishment of Escrow Account; Deposits in Escrow
Account; Escrow Analysis) is hereby amended by replacing the words "for
Xxxxxx Brothers Bank, FSB, as Owner and any successor Owner, and
certain Mortgagors" with "for SASCO 2004-12H Trust Fund and various
Mortgagors."
12. Section 2.12 (Title, Management and Disposition of Real Estate Owned)
is hereby amended by replacing all references to "Owner" with "Trustee"
in paragraph (a).
13. Section 3.1 (Distributions) is hereby amended as follows:
(i) replacing the word "preceding" in the second line of 3.1(a)
with the word "related;" and
(ii) by adding the following after Section 3.1(c):
(d) All remittances required to be made to the Master Servicer
shall be made to the following wire account or to such other
account as may be specified by the Master Servicer from time
to time:
X-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
14. Section 4.4 (Statements as to Compliance) is hereby amended as follows:
(i) replacing the reference to the word "Owner" in the second line
of Section 4.4(a) with "Master Servicer";
(ii) inserting the following text at the end of Sections 4.4(a):
The parties understand and agree that the Master Servicer may,
upon request by SASCO, provide a copy of such Officer's Certificate to
SASCO. Upon its receipt of such copy, SASCO may rely on such Officer's
Certificate and shall be treated for purposes of Section 4.4(a) as if
it were a party entitled to receive servicing reports provided pursuant
to Section 3.2(a).
(iii) replacing the reference to the word "Owner" in the third line
of 4.4(b) with "Master Servicer";
(iv) replacing Exhibit F with the form of Officer's Certificate set
forth on Exhibit E hereto.
(v) inserting the following text at the end of Sections 4.4(b):
The parties understand and agree that the Master Servicer may,
upon request by SASCO, provide a copy of such Officer's Certificate to
SASCO. Upon its receipt of such copy, SASCO may rely on such Officer's
Certificate and shall be treated for purposes of Section 4.4(b) as if
it were a party entitled to receive servicing reports provided pursuant
to Section 3.2(a).
(vi) replacing the references to the word "Owner" in the third and
fourth lines of Section 4.4(c) with "Master Servicer."
15. Section 4.5 (Annual Independent Public Accountants' Servicing Report)
is hereby amended as follows:
(i) replacing the word "Owner" in the fourth line of Section 4.5
with "Master Servicer"; and
(ii) inserting the following text at the end of Sections 4.5:
The parties understand and agree that the Master Servicer may,
upon request by SASCO, provide a copy of such accountants' servicing
report to SASCO.
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16. Section 5.1 (Indemnification; Third Party Claims) is hereby amended by
deleting Subsection (a) and replacing it with the following:
(a) The Servicer agrees to indemnify the Trust Fund and the
Trustee and hold each of them harmless against any and all
third party 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 in any way related to the
failure of the Servicer to service the Mortgage Loans in
compliance with the terms of this Agreement; provided, a
written request for indemnity by the Master Servicer submitted
directly by the Master Servicer to the Servicer shall be
deemed by the Servicer to be a claim for indemnity by the
Trustee or the Trust Fund pursuant to this Section 5.1(a),
together with the Trust Fund's direction to remit any amounts
due hereunder to the Master Servicer, if the Master Servicer
provides the Servicer with (i) reasonable evidence (x)
confirming that such claim arises out of the Servicer's
failure to service the Mortgage Loans in compliance with this
Agreement and (y) identifying the losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and
expenses incurred by the Master Servicer, and (ii) the
agreement pursuant to which the Trust Fund has agreed to
indemnify the Master Servicer and specifying the applicable
provisions of such agreement; and further provided, however,
the Servicer shall not be liable hereunder with respect to (i)
any action or inaction in accordance with the written
direction or consent of the Trustee, Trust Fund, Master
Servicer or Xxxxxx Brothers Holdings Inc. or (ii) any action
or inaction resulting from the Trustee's, Trust Fund's, Master
Servicer's or Xxxxxx Brothers Holdings Inc.'s failure to cause
any Collateral File (or portion thereof) to be released to the
Servicer pursuant to Sections 2.18 or 4.2(c) or other terms of
this Agreement or (iii) any action or inaction resulting from
the Trust Fund's failure to comply with Section 5.1(b) or
Section 5.6. The Servicer shall promptly notify the Trustee if
a claim is made by a third party with respect to this
Agreement or the Mortgage Loans, that the Servicer determines
in its good faith judgment will materially affect the Trust
Fund's interest in such Mortgage Loans. The Servicer shall
assume (with the prior written consent of the indemnified
party, which consent shall not be unreasonably withheld or
delayed) the defense of any such claim and pay all reasonable
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 indemnified
parties in respect of such claim. The Servicer shall follow
any written instructions received from the Trustee in
connection with such claim. The Servicer shall provide the
Trustee with a written report of all expenses and advances
incurred by the Servicer pursuant to this Section 5.1, and the
Trustee, from the assets of the Trust Fund, shall promptly
reimburse the Servicer for all amounts advanced by the
Servicer pursuant to this Section 5.1(a) except when the claim
is in any way related to the failure of the Servicer to
service and administer the Mortgage Loans in compliance with
the terms of this Agreement or the gross negligence, bad faith
or willful misconduct of the Servicer.
The Trust Fund shall indemnify the Servicer 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 Servicer may sustain in any way related to the
failure of the Trust Fund to perform its duties in compliance with the terms of
this Agreement.
17. Section 6.1 (Events of Default) is hereby amended by changing all
references to "Owner" with "Master Servicer" in such Section and
deleting Subsection (vi) and replacing it with the following:
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(vi) the Servicer at any time is neither a Xxxxxx Xxx or Xxxxxxx
Mac approved servicer, and the Master Servicer has not
terminated the rights and obligations of the Servicer under
this Agreement and replaced the Servicer with a Xxxxxx Mae or
Xxxxxxx Mac approved servicer within 30 days of the absence of
such approval; or
18. The parties hereto acknowledge that the word "Owner" in Section 6.2
(Waiver of Defaults) shall refer to the "Master Servicer with the prior
consent of the Trustee."
19. Section 9.1 (Successor to the Servicer) is hereby amended in its
entirety to read as follows:
(a) Simultaneously with the termination of the Servicer's
responsibilities and duties under this Agreement pursuant to
Sections 5.4, 6.1, 7.1 or 7.2 the Master Servicer shall, in
accordance with the provisions of the Trust Agreement (i)
succeed to and assume all of the Servicer's responsibilities,
rights, duties and obligations under this Agreement, or (ii)
appoint a successor meeting the eligibility requirements of
this Agreement, and which shall succeed to all rights and
assume all of the responsibilities, duties and liabilities of
the Servicer under this Agreement simultaneously with the
termination of the Servicer's responsibilities, duties and
liabilities under this Agreement. Any successor to the
Servicer that is not at that time a servicer of other mortgage
loans for the Trust Fund shall be subject to the approval of
the Master Servicer, Xxxxxx Brothers Holdings Inc., the
Trustee and each Rating Agency (as such term is defined in the
Trust Agreement). Unless the successor servicer is at that
time a servicer of other mortgage loans for the Trust Fund,
each Rating Agency must deliver to the Trustee a letter to the
effect that such transfer of servicing will not result in a
qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates. In connection with such
appointment and assumption, the Master Servicer or Xxxxxx
Brothers Holdings Inc., 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 Servicer under this Agreement.
In the event that the Servicer's duties, responsibilities and
liabilities under this Agreement should be terminated pursuant
to the aforementioned sections, the Servicer shall discharge
such duties and responsibilities, and be compensated therefor
as provided in this Agreement, during the period from the date
it acquires knowledge of such termination until the effective
date thereof with the same degree of diligence and prudence
which it is obligated to exercise under this Agreement, and
shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The
resignation or removal of the Servicer pursuant to the
aforementioned sections shall not become effective until a
successor shall be appointed pursuant to this Section 9.1 and
shall in no event relieve the Servicer of the representations
and warranties made pursuant to Section 5.7 prior to such
resignation or termination, which representations and
warranties shall be applicable to the Servicer notwithstanding
any such resignation or termination of the Servicer, or the
termination of this Agreement.
(b) Within a reasonable period of time, the Servicer shall
promptly prepare, execute and deliver to the successor entity
any and all documents and other instruments, place in such
successor's possession all Collateral Files and Credit Files,
and do or cause to be done all other acts or things necessary
or appropriate to effect the purposes of such termination. The
Servicer shall cooperate with the Trustee and the Master
Servicer, as applicable, and such successor in effecting the
termination of the Servicer's responsibilities and rights
hereunder and the transfer of servicing responsibilities to
the successor, including without limitation, the transfer to
such successor for administration by it of all cash amounts
which shall at the time be credited by the Servicer to the
Account or the Escrow Account or thereafter received with
respect to the Mortgage Loans, in each case to which the
Servicer is not entitled pursuant to this Agreement.
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(c) Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Trustee, the Servicer and the
Master Servicer an instrument (i) accepting such appointment,
wherein the successor shall make an assumption of the due and
punctual performance and observance of each covenant and
condition to be performed and observed by the Servicer under
this Agreement, whereupon such successor shall become fully
vested with all the rights, powers, duties, responsibilities,
obligations and liabilities of the Servicer, with like effect
as if originally named as a party to this Agreement. Any
termination or resignation of the Servicer or termination of
this Agreement pursuant to Sections 6.1 or 7.1 shall not
affect any claims that the Master Servicer or the Trustee may
have against the Servicer arising out of the Servicer's
actions or failure to act prior to any such termination or
resignation.
(d) The Servicer shall promptly deliver the funds in the Account
and Escrow Account, in each case to which the Servicer is not
entitled pursuant to this Agreement and all Collateral Files,
Credit Files and related documents and statements held by it
hereunder and the Servicer shall account for all funds and
shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and
definitively vest in the successor all such rights, powers,
duties, responsibilities, obligations and liabilities of the
Servicer.
(e) Upon a successor's acceptance of appointment as such, the
Servicer, the Master Servicer and the Trustee shall each
notify the others of such appointment, but only if and to the
extent of having actual knowledge of such appointment.
(f) Notwithstanding any termination pursuant to this Agreement,
the Servicer shall continue to be entitled to receive all
amounts accrued or owing to it under this Agreement on or
prior to the effective date of such termination, whether in
respect of (i) unreimbursed Servicing Advances or Monthly
Advances, (ii) unpaid Servicing Fees or REO Management Fees or
(iii) or other servicing compensation, and shall continue to
be entitled to the benefits of Section 5.3 notwithstanding any
such termination, with respect to events occurring prior to
such termination.
20. A new Section 9.15 is hereby added to read as follows:
Section 9.15 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; provided, however, that no third party beneficiary
designation will extend indemnification rights directly to the
Master Servicer. The Servicer shall only take direction from
the Master Servicer (if direction by the Master Servicer is
required under this Agreement) unless otherwise directed by
this Agreement. Notwithstanding any other terms of this
Agreement, the parties agree that the overriding intent is for
the Servicer to be entitled to deal with and through the
Master Servicer in virtually all circumstances. This intent is
not altered by anything herein, including without limitation,
the following: any third party beneficiary designation of the
Trustee; any requirement
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that the Servicer give notice to others with respect to third
party claims; any indemnification of the Servicer for
following instructions of others in selected circumstances;
any indemnifications running from the Servicer to others; or
any provisions allowing the Servicer in any circumstance to
rely on instructions from others. Notwithstanding the
foregoing, all rights and obligations of the Master Servicer
and the Trustee hereunder (other than the Trustee's right to
indemnification) shall terminate upon termination of the Trust
Agreement and of the Trust Fund pursuant to the Trust
Agreement; and upon such termination of the Trust Fund and the
Trust Agreement, the Serviced Mortgage Loans shall no longer
be governed by this Agreement but will be governed by terms of
the relevant Servicing Agreement.
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EXHIBIT B
Servicing Agreement
See Exhibit 99.19
EXHIBIT C
Master Mortgage Loan Purchase and Warranties Agreement
[INTENTIONALLY OMITTED]
EXHIBIT D
Mortgage Loan Schedule
[INTENTIONALLY OMITTED]
EXHIBIT E
FORM OF SERVICING OFFICER'S CERTIFICATE
[Date]
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Re: Structured Asset Securities Corporation, Mortgage Pass-Through
Certificates, Series 2004-12H
______________________________________________________________________
I, [name of certifying individual], a duly elected and acting officer
of Washington Mutual Bank, FA (the "Servicer"), certify pursuant to Section
4.4(b) of the Servicing Agreement dated as of February 1, 2004 (as from time to
time amended or replaced by a reconstituted servicing or other successor
servicing agreement, the "Servicing Agreement") between the Servicer and Xxxxxx
Brothers Bank, FSB (the "Owner") to the Owner and each other Person entitled to
receive servicing reports provided pursuant to Section 3.2(a) of the Servicing
Agreement (the "Servicing Reports"), each Person, if any, who "controls" the
Owner or such other Person within the meaning of the Securities Act of 1933, as
amended, and their respective officers and directors, with respect to the
calendar year immediately preceding the date of this Certificate (the "Relevant
Year"), as follows:
1. For purposes of this Certificate, "Relevant Information" means the
information in the certificate provided pursuant to Section 4.4(a) of the
Servicing Agreement (the "Annual Compliance Certificate") for the Relevant Year
and the information in all Servicing Reports provided by the Servicer during the
Relevant Year. Based on my knowledge, the Relevant Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein which is necessary to make the
statements made therein, in light of the circumstances under which such
statements were made, not misleading as of the last day of the Relevant Year.
2. The Relevant Information has been provided to those Persons entitled
to receive it.
3. I am responsible for reviewing the activities performed by the
Servicer under the Servicing Agreement during the Relevant Year. Based upon the
review required by the Servicing Agreement and except as disclosed in the Annual
Compliance Certificate or the accountants' statement provided pursuant to
Section 4.5, to the best of my knowledge, the Servicer has fulfilled its
obligations under the Servicing Agreement throughout the Relevant Year.
DATED as of ________ __. 200_.
WASHINGTON MUTUAL BANK, FA
Name: ___________________________
Title: ___________________________
Date: ___________________________
Exhibit F
Assignment and Assumption Agreement
[INTENTIONALLY OMITTED]
