EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered
into as of the 1st day of May, 2005, by and between XXXXXX BROTHERS HOLDINGS
INC., a Delaware corporation ("Xxxxxx Brothers Holdings"), and JPMORGAN CHASE
BANK, N.A., a National Banking Association (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 May 1,
2005 (the "Sale and Servicing Agreement"), and annexed as Exhibit B hereto.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated May
1, 2005 (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 Sale and Servicing 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, 2005 (the "Trust
Agreement"), among the Trustee, Aurora Loan Services LLC, 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 such Mortgage Loans remain
subject to the provisions of the Trust Agreement and until the Transfer Date.
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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 LaSalle Bank
National Association will act as custodian of the Mortgage Files for the Trustee
pursuant to a Custodial Agreement, dated May 1, 2005, between LaSalle 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
2005-11H 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 context
requires, the Master Servicer acting in its capacity as agent for the
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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 Sections 3.01(a), (b), (c), (e), (f),
(g), (h) and (k).
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 LLC
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Mail Stop Code - 3195
Attn: E. Xxxx Xxxxxxxxxx - Master Servicing
SASCO 0000-00X
Tel: 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:
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JPMorgan Chase Bank, N.A.
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services LLC, Master Servicing Payment
Clearing Account
Account No.: 066-611059
Beneficiary: Aurora Loan Services LLC
For further credit to: SASCO 2005-11H
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
Citibank, N.A.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Citibank Agency and Trust (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:
Dechert LLP
0000 Xxxx 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:
JPMorgan Chase Bank, N.A.
c/o Chase Home Finance LLC
000 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
with a copy to:
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General Counsel
Chase Home Finance LLC
000 Xxxx Xxxxxx Xxxxx
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: Xxxxx Xxxxxxx
Title: Authorized Signatory
JPMORGAN CHASE BANK, N.A.,
as Servicer and successor to Chase
Mortgage Company
By:
------------------------------------
Name:
Title:
ACKNOWLEDGED BY:
AURORA LOAN SERVICES LLC,
as Master Servicer
By:
------------------------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
CITIBANK, N.A.,
as Trustee
By:
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: 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 Xxx, 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 Mae" is hereby added to Article I to immediately
follow the definition of "GAAP" and to read as follows:
"Xxxxxx Xxx": 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 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 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. Section 4.04 (Establishment of Custodial Accounts; Deposits in Custodial
Accounts) is hereby amended by (i) adding the following language in the
seventh line of the first paragraph after "Closing Date":
"to the Master Servicer within 30 days of the Closing Date"
(ii) adding the following language to the end of subsection 4.04(xi):
"Such deposit shall be made from the Seller's own funds, without
reimbursement therefor up to a maximum amount per month of the
Servicing Fee actually received for such month for the Mortgage
Loans."
12. The parties hereto acknowledge that (i) the Custodial Account referenced in
Section 4.04 shall be titled "JPMorgan Chase Bank, N.A. in trust for the
SASCO 2005-11H Trust Fund" and (ii) references to the Cut-off Date shall
mean the close of business on May 1, 2005. The parties hereto agree that
all funds in such accounts shall be invested in Eligible Investments to the
extent invested.
13. The parties hereto acknowledge that (i) the Escrow Account referenced in
Section 4.06 shall be titled "JPMorgan Chase Bank, N.A. in trust for the
SASCO 2005-11H Trust Fund." The parties hereto agree that all funds in such
accounts shall be invested in Eligible Investments to the extent invested.
14. 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
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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 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.
15. 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.
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Beginning with calendar year 2006, the Seller shall prepare and file
any and all tax returns, information statements or other filings for the
portion of the tax year 2005 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.
16. 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.
17. 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.
18. 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:
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(b) By March 15th of each year (or if not a Business Day, the
immediately preceding Business Day), commencing with March 15, 2006, 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.
19. Section 6.05 (Annual Independent Certified Public Accountants' Servicing
Report) is hereby amended by replacing "Purchaser" with "Xxxxxx Brothers
Holdings and Master Servicer."
20. The parties hereto acknowledge that Section 6.07 (Annual Officer's
Certificate) shall be inapplicable to this Agreement.
21. 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.
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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.
22. 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."
(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.
23. 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."
24. 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
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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.
25. Section 12.01 (Successor to the Seller) is hereby amended in its entirety
to read as follows:
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
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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
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.
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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.
26. A new Section 12.20 is hereby added to read as follows:
Section 12.20 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 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
(See Exhibit 99.4)
B-1
EXHIBIT C
Mortgage Loan Schedule
[INTENTIONALLY OMITTED]
C-1
EXHIBIT D
Officer's Certificate
Structured Asset Securities Corporation
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Aurora Loan Services LLC
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Mail Stop Code - 3195
Re: Structured Asset Securities Corporation, Mortgage Pass-Through
Certificates, Series 2005-11H
Reference is made to the Reconstituted Servicing Agreement, dated as of May 1,
2005 (the "Agreement"), by and among Xxxxxx Brothers Holdings Inc., as seller,
and JPMorgan Chase Bank, N.A., as servicer (the "Servicer"). The Servicer hereby
certifies to Aurora Loan Services LLC (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.
JPMORGAN CHASE BANK, N.A.,
as Servicer
By:
------------------------------------
D-1
Name:
Title:
D-2
EXHIBIT E
Assignment and Assumption Agreement
(INTENTIONALLY OMITTED)
E-1
