RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of June, 2003, by and between XXXXXX BROTHERS HOLDINGS INC., a
Delaware corporation (the "Seller" or "Xxxxxx Brothers Holdings"), and CENDANT
MORTGAGE CORPORATION, a New Jersey corporation (the "Servicer") having an office
at 0000 Xxxxxxxxxx Xxxx, Xx. Xxxxxx, Xxx Xxxxxx 00000, recites and provides as
follows:
RECITALS
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Bank") acquired certain first
lien, residential mortgage loans from the Servicer and Xxxxxx'x Gate Residential
Mortgage Trust (formerly known as Cendant Residential Mortgage Trust) ("Xxxxxx'x
Gate"), which mortgage loans were either originated or acquired by the Servicer
or Xxxxxx'x Gate, pursuant to a Mortgage Loan Flow Purchase, Sale & Servicing
Agreement dated as of February 1, 2002 (the "Servicing Agreement"), by and among
the Bank, as purchaser, the Servicer, as seller and attached hereto as Exhibit
B.
WHEREAS, the mortgage loans are currently being serviced pursuant to
the Servicing Agreement.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated June
1, 2003 (the "Assignment and Assumption Agreement") annexed as Exhibit C hereto,
the Seller acquired from the Bank all of the Bank's right, title and interest in
and to the mortgage loans currently serviced under the Servicing Agreement and
assumed for the benefit of each of the Servicer and the Bank the rights and
obligations of the Bank as owner of such mortgage loans pursuant to the
Servicing Agreement.
WHEREAS, the Seller has conveyed the mortgage loans (the "Mortgage
Loans") identified on Exhibit D to Structured Asset Securities Corporation, a
Delaware special purpose corporation ("SASCO"), which in turn has conveyed the
Mortgage Loans to HSBC Bank USA, as trustee (the "Trustee"), pursuant to a trust
agreement dated as of June 1, 2003 (the "Trust Agreement"), by and among the
Trustee, Aurora Loan Services Inc., as master servicer ("Aurora", and together
with any successor Master Servicer appointed pursuant to the provisions of the
Trust Agreement, the "Master Servicer"), Xxxxx Fargo Bank Minnesota, National
Association, as securities administrator and SASCO.
WHEREAS, the Seller desires that the Servicer continue to service the
Mortgage Loans, and the Servicer has agreed to do so.
WHEREAS, the Seller and the Servicer agree that the provisions of the
Servicing Agreement, as amended hereby with respect to the Mortgage Loans, shall
continue to apply to the Mortgage Loans, and shall govern the Mortgage Loans for
so long as such Mortgage Loans remain subject to the provisions of the Trust
Agreement.
WHEREAS, the Master Servicer and any successor master servicer shall be
obligated, among other things, to supervise the servicing of the Mortgage Loans
on behalf of the Trustee, and shall have the right under the conditions
specified herein to terminate for cause the rights and obligations of the
Servicer under this Agreement.
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WHEREAS, the Seller and the Servicer intend that each of the Master
Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Seller and the Servicer hereby
agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this
Agreement, including Exhibit A hereto and any provisions of the Servicing
Agreement incorporated by reference herein (regardless of whether such terms are
defined in the Servicing Agreement), shall have the meanings ascribed to such
terms in the Trust Agreement.
2. Servicing. The Servicer agrees, with respect to the Mortgage Loans,
to perform and observe the duties, responsibilities and obligations that are to
be performed and observed under the provisions of the Servicing Agreement,
except as otherwise provided herein and on Exhibit A hereto, and that the
provisions of the Servicing Agreement, as so modified, are and shall be a part
of this Agreement to the same extent as if set forth herein in full.
3. Master Servicing; Termination of Servicer. The Servicer, including
any successor servicer hereunder, shall be subject to the supervision of the
Master Servicer, which Master Servicer shall be obligated to ensure that the
Servicer services the Mortgage Loans in accordance with the provisions of this
Agreement. The Master Servicer, acting on behalf of the Trustee and the SASCO
2003-22A Trust Fund (the "Trust Fund") created pursuant to the Trust Agreement,
shall have the same rights as the Seller as purchaser under the Servicing
Agreement to enforce the obligations of the Servicer under the Servicing
Agreement and the term "Purchaser" as used in the Servicing Agreement in
connection with any rights of the Seller shall refer to the Trust Fund or, as
the context requires, the Master Servicer acting in its capacity as agent for
the Trust Fund, except as otherwise specified in Exhibit A hereto. The Master
Servicer shall be entitled to terminate the rights and obligations of the
Servicer under this Agreement upon the failure of the Servicer to perform any of
its obligations under this Agreement, which failure results in an Event of
Default as provided in Section 10.01 of the Servicing Agreement. Notwithstanding
anything herein to the contrary, in no event shall the Master Servicer assume
any of the obligations of the Seller under the Servicing Agreement; and in
connection with the performance of the Master Servicer's duties hereunder, the
parties and other signatories hereto agree that the Master Servicer shall be
entitled to all of the rights, protections and limitations of liability afforded
to the Master Servicer under the Trust Agreement.
4. Compliance with HOEPA. The Servicer is currently in compliance with
the Home Ownership and Equity Protection Act ("HOEPA") and will continue to
operate its business in compliance with HOEPA.
5. No Representations. Except as described herein, neither the Servicer
nor the Master Servicer shall be obligated or required to make any
representations and warranties regarding the characteristics of the Mortgage
Loans (other than those representations and warranties made in Section 3.03 of
the Servicing Agreement) in connection with the transactions contemplated by the
Trust Agreement and issuance of the Certificates issued pursuant thereto. The
Servicer hereby makes the following additional representations and warranties
which may be enforced in accordance with the Servicing Agreement:
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(a) No Mortgage Loan originated on or after October 1, 2002 and secured
by a Mortgaged Property located in the State of Georgia is a "home loan" and is
either a "covered" or "high cost loan" as defined in the Georgia Fair Lending
Act, as amended.
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 2003-22A
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled basis to the following wire
account:
JPMorgan Chase Bank
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc., Master Servicing Payment
Clearing Account
Account No.: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO 2003-22A
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Issuer Services, SASCO 2003-22A
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.
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All notices required to be delivered to the Servicer hereunder shall be
delivered to the address of its office as set forth in the first paragraph of
this Agreement.
7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING NEW YORK OR
OTHER CHOICE OF LAW RULES TO THE CONTRARY.
8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
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Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By:
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Authorized Signatory
CENDANT MORTGAGE CORPORATION,
as Servicer
By:_______________________________________
Name: Xxxxx Xxxx
Title: Vice President
Acknowledged By:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:_________________________________________
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
HSBC BANK USA,
as Trustee
By: ________________________________________
Name: Xxxxx Xxxxx
Title: Trust Officer
EXHIBIT A
Modifications to the Servicing Agreement
1. Unless otherwise specified herein, for purposes of this Servicing
Agreement, including definitions, relating to (i) representations and
warranties of the Purchaser, (ii) the sale and purchase of the Mortgage
Loans, (iii) Funding Dates and (iv) Specially Serviced Mortgage Loans,
shall be disregarded. The exhibits to the Servicing Agreement and all
references to such exhibits shall also be disregarded.
2. For reporting purposes, a Mortgage Loan is "delinquent" when any payment
contractually due thereon has not been made by the close of business on the
Due Date therefor. Such Mortgage Loan is "30 days Delinquent" if such
payment has not been received by the close of business on the corresponding
day of the month immediately succeeding the month in which such payment was
first due, or, if there is no such corresponding day (e.g., as when a
30-day month follows a 31-day month in which a payment was due on the 31st
day of such month), then on the last day of such immediately succeeding
month. Similarly for "60 days Delinquent" and the second immediately
succeeding month and "90 days Delinquent" and the third immediately
succeeding month.
3. A new definition of "Adverse REMIC Event" is hereby added to Article I to
read as follows:
"Adverse REMIC Event": As defined in Article X of the Trust
Agreement.
4. The definition of "Collection Account" is hereby amended to change the
words "the Purchaser of Mortgage Loans under the Mortgage Loan Flow
Purchase, Sale & Servicing Agreement, dated as of February 1, 2002" to
"SASCO 2003-22A Trust Fund".
5. The definition of "Custodial Agreement" in Article I is hereby amended in
its entirety to read as follows:
"Custodial Agreement" means the Custodial Agreement dated as
of June 1, 2003 between the Custodian and the Trustee.
6. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
"Custodian" means LaSalle Bank, National Association, any
successor in interest or any successor custodian appointed
pursuant to the Custodial Agreement.
7. The definition of "Cut Off Date" in Article I is hereby amended in its
entirety to read as follows:
"Cut Off Date": The close of business on June 1, 2003.
8. The definition of "Eligible Account" is hereby amended and restated in its
entirety to read as follows:
"Eligible Account": One or more accounts that are maintained
with (i) a depository the accounts of which are insured by the
FDIC and the debt obligations of which are rated AA (or its
equivalent) or better by each Rating Agency; (ii) the
corporate trust department of any bank the debt obligations of
which are rated at least A-1 or its equivalent by each Rating
Agency; or (iii) Xxxxxx Brothers Bank, FSB, a federal savings
bank.
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9. The definition of "Escrow Account" in Article I is hereby amended by
changing the words "the Purchaser under the Mortgage Loan Flow Purchase,
Sale & Servicing Agreement, dated as of February 1, 2002, and various
mortgagors" therein to "SASCO 2003-22A Trust Fund".
10. The definition of "Mortgage Loan Schedule" in Article I is hereby amended
in its entirety to read as follows:
"Mortgage Loan Schedule": The schedule of Mortgage Loans
setting forth certain information with respect to the Mortgage
Loans, which Mortgage Loan Schedule is attached as Exhibit B
to this Agreement.
11. A new definition of "Opinion of Counsel" is hereby added to Article I to
read as follows:
"Opinion of Counsel" A written opinion of counsel, who may be
an employee of the Servicer, that is reasonably acceptable to
the Trustee and the Master Servicer provided that any Opinion
of Counsel relating to (a) qualification of the Mortgage Loans
in a REMIC or (b) compliance with the REMIC Provisions, must
be an opinion of counsel reasonably acceptable to the Trustee
and Xxxxxx Brothers Holdings Inc., who (i) is in fact
independent of any Seller, the Servicer and any Master
Servicer of the Mortgage Loans, (ii) does not have any
material direct or indirect financial interest in the Servicer
or any Master Servicer of the Mortgage Loans or in an
affiliate of any such entity and (iii) is not connected with
any Seller, the Servicer or any Master Servicer of the
Mortgage Loans as an officer, employee, director or person
performing similar functions.
12. A new definition of "REMIC Provisions" is hereby added to Article I to read
as follows:
"REMIC Provisions: The provisions of the federal income tax
law relating to real estate mortgage investment conduits,
which appear at sections 860A through 860G of Subchapter M of
Chapter 1 of the Code, and related provisions, and
regulations, including proposed regulations and rulings, and
administrative pronouncements promulgated thereunder, as the
foregoing may be in effect from time to time."
13. The definition of "REO Property" in Article I is hereby amended by
replacing the word "Purchaser" with "Trustee on behalf of the Trust Fund".
14. The parties hereto acknowledge that Section 2.02 (Possession of Mortgage
Files) shall be inapplicable to this Agreement, as superseded by the
provisions of the Custodial Agreement and the Trust Agreement.
15. The parties hereto acknowledge that Section 2.05 (Transfer of Mortgage
Loans) of the Servicing Agreement shall be modified to indicate that the
Custodian shall prepare and execute at the direction of the Seller any note
endorsements in connection with transfer of the Mortgage Loans to the Trust
Fund as the owner of the Mortgage Loans and that the Seller shall pay for
any fees associated with the preparation and execution of such note
endorsements to the Trust Fund.
16. For purposes of servicing only, the second, third, fourth and fifth
paragraphs of Section 3.04 (Repurchase) are hereby restated to read as
follows:
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(2) Within 60 days of the earlier of either discovery by or
notice to the Servicer of any breach of a representation or
warranty set forth in Section 3.02 which materially and
adversely affects the ability of the Servicer to perform its
duties and obligations under this Agreement or otherwise
materially and adversely affects the value of the Mortgage
Loans, the Mortgaged Property or the priority of the security
interest on such Mortgaged Property, the Servicer shall use
its best efforts promptly to cure such breach in all material
respects and, if such breach cannot be cured, the Servicer
shall, at the Trustee's option, assign the Servicer's rights
and obligations under this Agreement (or respecting the
affected Mortgage Loans) to a successor Servicer selected by
the Master Servicer with the prior consent and approval of the
Trustee. Such assignment shall be made in accordance with
Section 12.01.
(3) In addition, the Servicer shall indemnify (from its own
funds) the Trustee, the Trust Fund and the Master Servicer and
hold each of them harmless against any costs resulting from
any claim, demand, defense or assertion based on or grounded
upon, or resulting from, a breach of the Servicer's
representations and warranties contained in this Agreement. It
is understood and agreed that the remedies set forth in this
Section 3.04 constitute the sole remedies of the Master
Servicer, the Trust Fund and the Trustee respecting a breach
of the foregoing representations and warranties.
(4) Any cause of action against the Servicer relating to or
arising out of the breach of any representations and
warranties made in Section 3.01 shall accrue upon (i)
discovery of such breach by the Servicer or notice thereof by
the Trustee or Master Servicer to the Servicer, (ii) failure
by the Servicer to cure such breach within the applicable cure
period, and (iii) demand upon the Servicer by the Trustee or
the Master Servicer for compliance with this Agreement.
17. Section 5.01(3)(c)(3) is hereby amended by replacing the word "Purchaser"
with "Master Servicer".
18. Section 5.01(3) is hereby amended by removing the word "and" at the end of
subsection (e), replacing the period at the end of subsection (f) with a
semicolon and adding a new subsection (g) thereto to read as follows:
"(g) the Servicer shall not, unless default by the related
Mortgagor has occurred or is, in the reasonable judgment of
the Servicer, imminent, knowingly permit any modification,
waiver or amendment of any material term of any Mortgage Loan
(including but not limited to the interest rate, the principal
balance, the amortization schedule, or any other term
affecting the amount or timing of payments on the Mortgage
Loan or the collateral therefor) unless the Servicer shall
have provided to the Master Servicer and the Trustee an
Opinion of Counsel in writing to the effect that such
modification, waiver or amendment would not cause an Adverse
REMIC Event."
19. The parties hereto acknowledge that the reference to each Funding Date in
the second paragraph of Section 5.04 shall mean the "close of business on
June 1, 2003."
20. Section 5.04(10) is hereby amended in its entirety to read as follows:
"(10) interest on the amount of any Principal Prepayment at
the related Remittance Rate to the end of the month in which
prepayment of the related Mortgage Loan occurs, such deposit
to be made from the Servicer's own funds without reimbursement
therefor."
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21. Section 5.13 (Management of REO Properties) is hereby amended by replacing
the second paragraph of such section thereof with the following:
"In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage
Loan, the Servicer shall dispose of such REO Property not
later than the end of the third taxable year after the year of
its acquisition by the Trust Fund unless the Servicer has
applied for and received a grant of extension from the
Internal Revenue Service to the effect that, under the REMIC
Provisions and any relevant proposed legislation and under
applicable state law, the Trust Fund may hold REO Property for
a longer period without adversely affecting the REMIC status
of any REMIC included in the Trust Fund or causing the
imposition of a federal or state tax upon any such REMIC. If
the Servicer has received such an extension, then the Servicer
shall continue to attempt to sell the REO Property for its
fair market value for such period longer than three years as
such extension permits (the "Extended Period"). If the
Servicer has not received such an extension and the Servicer
is unable to sell the REO Property within the period ending 3
months before the end of such third taxable year after its
acquisition by the Trust Fund or if the Servicer has received
such an extension, and the Servicer is unable to sell the REO
Property within the period ending three months before the
close of the Extended Period, the Servicer shall, before the
end of the three year period or the Extended Period, as
applicable, (i) purchase such REO Property at a price equal to
the REO Property's fair market value or (ii) auction the REO
Property to the highest bidder (which may be the Servicer) in
an auction reasonably designed to produce a fair price prior
to the expiration of the three-year period or the Extended
Period, as the case may be. The Trustee shall sign any
document or take any other action reasonably requested by the
Servicer which would enable the Servicer, on behalf of the
Trust Fund, to request such grant of extension.
Notwithstanding any other provisions of this Agreement, no REO
Property acquired by the Trust Fund shall be rented (or
allowed to continue to be rented) or otherwise used by or on
behalf of the Trust Fund in such a manner or pursuant to any
terms that would: (i) cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code; or (ii) subject the Trust Fund
to the imposition of any federal income taxes on the income
earned from such REO Property, including any taxes imposed by
reason of Sections 860F or 860G(c) of the Code, unless the
Servicer has agreed to indemnify and hold harmless the Trust
Fund with respect to the imposition of any such taxes."
22. Section 5.15 (Realization Upon Specially Serviced Mortgage Loans and REO
Properties) is hereby amended by changing the words "2 years" in the last
sentence of the third paragraph thereof to "3 years".
23. Section 6.01 (Remittances) is hereby amended by replacing the word
"Purchaser" with "Master Servicer" and by replacing paragraphs (1) and (2)
of such section with the following:
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"(1) On each Remittance Date, the Servicer shall
remit to the Purchaser (a) all amounts credited to the
Collection Account as of the close of business on the last day
of the related Due Period (including (1) the amount of any
Principal Prepayment, together with interest thereon at the
related Remittance Rate to the end of the month in which
prepayment of the related Mortgage Loan occurs and (2) all
proceeds of any REO Disposition net of amounts payable to the
Servicer pursuant to Section 5.13), net of charges against or
withdrawals from the Collection Account in accordance with
Section 5.05, which charges against or withdrawals from the
Collection Account the Servicer shall make solely on such
Remittance Date, plus (b) all Monthly Advances, if any, which
the Servicer is obligated to remit pursuant to Section 6.03;
provided that the Servicer shall not be required to remit,
until the next following Remittance Date, any amounts
attributable to Monthly Payments collected but due on a Due
Date or Dates subsequent to the related Due Period.
(2) All remittances required to be made to the Master
Servicer shall be made to the following wire account or to
such other account as may be specified by the Master Servicer
from time to time:
JPMorgan Chase Bank
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc., Master Servicing
Payment Clearing Account
Account No.: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO 2003-22A
24. Section 6.02 (Reporting) is hereby amended by replacing the word
"Purchaser" with "Master Servicer" and by replacing the first paragraph of
such section with the following:
Not later than the 10th calendar day of each month,
the Servicer shall furnish to the Master Servicer (i) a
monthly remittance advice and a monthly defaulted loan report
in the formats set forth mutually agreed between the Servicer
and the Master Servicer relating to the period ending on the
last day of the preceding calendar month and (ii) all such
information required pursuant to clause (i) above on a
magnetic tape or other similar media reasonably acceptable to
the Master Servicer.
25. Section 6.03 (Monthly Advances by Servicer) is hereby amended by adding the
following new sentence immediately following the second sentence of such
section:
Any Prepaid Monthly Payments so used to make Monthly
Advances shall be replaced by the Servicer by deposit in the
Custodial Account on or before any future Remittance Date if
funds in the Custodial Account on such Remittance Date shall
be less than payments to the Trust Fund required to be made on
such Remittance Date.
26. Sections 7.04 (Annual Statement as to Compliance) and 7.05 (Manual
Independent Certified Public Accountants' Servicing Report) are hereby
amended by replacing the word "Purchaser" with "Master Servicer," replacing
the words "March 31" with "the last day of February" and replacing the
words "March 31, 2002" with "February 28, 2004."
27. Section 9.01 (Indemnification; Third Party Claims) is hereby amended by
changing the word "Purchaser" to "Master Servicer, Trustee and the Trust
Fund."
28. Section 9.02 (Merger or Consolidation of the Seller) is hereby amended by
changing the word "Purchaser" to "Trustee" where it appears in the proviso
to the second sentence thereof.
29. Section 9.04 (Servicer Not to Resign) is hereby amended in its entirety to
read as follows:
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The Servicer shall neither assign this Agreement or
the servicing hereunder or delegate its rights or duties
hereunder or any portion hereof (to other than a third party
in the case of outsourcing routine tasks such as taxes,
insurance and property inspection, in which case the Servicer
shall be fully liable for such tasks as if the Servicer
performed them itself) or sell or otherwise dispose of all or
substantially all of its property or assets without the prior
written consent of the Trustee and the Master Servicer, which
consent shall be granted or withheld in the reasonable
discretion of such parties, provided, however, that the
Servicer may assign its rights and obligations hereunder
without prior written consent of the Trustee and the Master
Servicer to any entity that is directly owned or controlled by
the Servicer, and the Servicer guarantees the performance of
such entity hereunder. In the event of such assignment by the
Servicer, the Servicer shall provide the Trustee and the
Master Servicer with a written statement guaranteeing the
successor entity's performance of the Servicer's obligations
under the Agreement.
30. Section 10.01 (Events of Default) is hereby amended as follows:
(a) changing the words "3 Business Days" in Section 10.01(1) to "1
Business Day" and deleting the remainder of Section 10.01(1);
(b) by changing the words "45 days and 45-day" in Section 10.01(2) to
"15 days and 15-day" respectively; and
(c) amending subclause (6) as follows: "Cendant Mortgage at any time is
neither FNMA or FHLMC approved servicer, and the Master Servicer has
not terminated the rights and obligations of Cendant Mortgage under
this Agreement and replaced Cendant Mortgage with a FNMA or FHLMC
approved servicer within 30 days of the absence of such approval;".
31. The parties hereto acknowledge that the remedies set forth in Section 10.01
may be exercised by either the Master Servicer or the Trustee on behalf of
the Trust Fund.
32. Section 11.01 (Term and Termination) is hereby amended by changing the
references to "Purchaser" in the second and third paragraph of such section
to "Master Servicer."
33. Section 11.02 (Termination without Cause) is hereby deleted in its
entirety.
34. Section 12.01 (Successor to the Servicer) is hereby amended in its entirety
to read as follows:
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Simultaneously with the termination of the Servicer's
responsibilities and duties under this Agreement (a) pursuant
to Sections 9.04, 10.01, 11.01 or 11.02, the Master Servicer
shall, in accordance with the provisions of the Trust
Agreement (i) succeed to and assume all of the Servicer's
responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor meeting the eligibility
requirements of this Agreement set forth in Section 9.02 and
which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Servicer under
this Agreement with the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement.
Any successor to the Servicer that is not at that time a
Servicer of other Mortgage Loans for the Trust Fund shall be
subject to the approval of the Master Servicer, Xxxxxx
Brothers Holdings Inc., the Trustee and each Rating Agency (as
such term is defined in the Trust Agreement). Unless the
successor servicer is at that time a servicer of other
mortgage loans for the Trust Fund, each Rating Agency must
deliver to the Trustee a letter to the effect that such
transfer of servicing will not result in a qualification,
withdrawal or downgrade of the then-current rating of any of
the Certificates. In connection with such appointment and
assumption, the Master Servicer or the Depositor, as
applicable, may make such arrangements for the compensation of
such successor out of payments on the Mortgage Loans as it and
such successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted the Servicer
under this Agreement. In the event that the Servicer's duties,
responsibilities and liabilities under this Agreement should
be terminated pursuant to the aforementioned sections, the
Servicer shall discharge such duties and responsibilities
during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to
exercise under this Agreement, and shall take no action
whatsoever that might impair or prejudice the rights or
financial condition of its successor. The resignation or
removal of the Servicer pursuant to the aforementioned
sections shall not become effective until a successor shall be
appointed pursuant to this Section 12.01 and shall in no event
relieve the Servicer of the representations and warranties
made pursuant to Section 3.02 and the remedies available to
the Trustee under Sections 3.04 and 9.01, it being understood
and agreed that the provisions of such Sections 3.02, 3.04 and
9.01 shall be applicable to the Servicer notwithstanding any
such resignation or termination of the Servicer, or the
termination of this Agreement.
Within a reasonable period of time, but in no event
longer than 30 days of the appointment of a successor entity,
the Servicer shall prepare, execute and deliver to the
successor entity any and all documents and other instruments,
place in such successor's possession all Servicing Files, and
do or cause to be done all other acts or things necessary or
appropriate to effect the purposes of such notice of
termination. The Servicer shall cooperate with the Trustee and
the Master Servicer, as applicable, and such successor in
effecting the termination of the Servicer's responsibilities
and rights hereunder and the transfer of servicing
responsibilities to the successor Servicer, including without
limitation, the transfer to such successor for administration
by it of all cash amounts which shall at the time be credited
by the Servicer to the Custodial Account or any Escrow Account
or thereafter received with respect to the Mortgage Loans.
Any successor appointed as provided herein shall
execute, acknowledge and deliver to the Trustee, the Servicer
and the Master Servicer an instrument (i) accepting such
appointment, wherein the successor shall make the
representations and warranties set forth in Section 3.02 and
(ii) an assumption of the due and punctual performance and
observance of each covenant and condition to be performed and
observed by the Servicer under this Agreement, whereupon such
successor shall become fully vested with all the rights,
powers, duties, responsibilities, obligations and liabilities
of the Servicer, with like effect as if originally named as a
party to this Agreement. Any termination or resignation of the
Servicer or termination of this Agreement pursuant to Section
12.01 shall not affect any claims that the Master Servicer or
the Trustee may have against the Servicer arising out of the
Servicer's actions or failure to act prior to any such
termination or resignation.
The Servicer shall deliver within ten (10) Business
Days to the successor Servicer the funds in the Custodial
Account and Escrow Account and all Mortgage Loan Documents and
related documents and statements held by it hereunder and the
Servicer shall account for all funds and shall execute and
deliver such instruments and do such other things as may
reasonably be required to more fully and definitively vest in
the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer.
A-7
Upon a successor's acceptance of appointment as such,
the Servicer shall notify the Trustee and Master Servicer of
such appointment in accordance with the notice procedures set
forth herein.
35. Section 12.07 (Waivers and Amendments, Noncontractual Remedies;
Preservation of Remedies) is hereby amended by adding the following two
paragraphs to the end of such Section 12.07:
Notwithstanding anything to the contrary elsewhere in this
Agreement, the Servicer shall not waive a prepayment penalty
or charge except under the following circumstances: (i) such
waiver would, in the reasonable judgment of Servicer, maximize
total proceeds taking into account the value of such
prepayment penalty or charge or (ii) the Servicer obtains a
written Opinion of Counsel, which may be in-house counsel for
the Servicer, opining that any prepayment penalty or charge is
not legally enforceable in the circumstances under which the
related Principal Prepayment occurs. In the event that the
Servicer waives any prepayment penalty or charge, other than
as set forth in (i) above, the Servicer shall deposit the
amount of any such prepayment penalty or charge in the
Custodial Account for distribution to the Purchaser on the
next Remittance Date.
Notwithstanding anything to the contrary elsewhere in this
Agreement, the Servicer shall deposit the full amount of any
prepayment penalty or charge that is identified on the
Mortgage Loan Schedule into the Custodial Account at the time
the related prepayment penalty is deposited therein if and to
the extent a Mortgage Loan identified on the Mortgage Loan
Schedule as having a prepayment penalty or charge prepays
regardless of whether the actual prepayment penalty or charge
is lower than described in the Mortgage Loan Schedule or is
not a contractual obligation of the borrower on the Mortgage
Note.
36. A new Section 12.12 (Intended Third Party Beneficiaries) is hereby added to
read as follows:
Intended Third Party Beneficiaries. Notwithstanding any
provision herein to the contrary, the parties to this
Agreement agree that it is appropriate, in furtherance of the
intent of such parties as set forth herein, that the Master
Servicer and the Trustee receive the benefit of the provisions
of this Agreement as intended third party beneficiaries of
this Agreement to the extent of such provisions. The Servicer
shall have the same obligations to the Master Servicer and the
Trustee as if they were parties to this Agreement, and the
Master Servicer and the Trustee shall have the same rights and
remedies to enforce the provisions of this Agreement as if
they were parties to this Agreement. The Servicer shall only
take direction from the Master Servicer (if direction by the
Master Servicer is required under this Agreement) unless
otherwise directed by this Agreement. Notwithstanding the
foregoing, all rights and obligations of the Master Servicer
and the Trustee hereunder (other than the right to
indemnification) shall terminate upon termination of the Trust
Agreement and of the Trust Fund pursuant to the Trust
Agreement.
37. A new Section 12.13 (Request for Release) is hereby added to read as
follows:
Request for Release. When requesting a release of documents
from the Custodian, the Servicer shall use the form attached
hereto as Exhibit E.
A-8
38. A new Section 12.14 (Officer's Certificate) is hereby added to read as
follows:
(a) By February 28th of each year, or at any other time upon thirty
(30) days written request, an officer of the Servicer shall execute and deliver
an Officer's Certificate substantially in the form of Exhibit F attached hereto,
signed by the senior officer in charge of servicing of the Servicer or any
officer to whom that officer reports, to the Master Servicer and Depositor for
the benefit of such the Master Servicer and their respective officers, directors
and affiliates. Notwithstanding the foregoing, in the event that as to any year
a report on Form 10-K is not required to be filed with the Securities and
Exchange Commission with respect to the related securitization transaction for
the prior calendar year, then (i) the Depositor shall notify the Servicer of
that fact, and (ii) the Servicer shall not be required to provide the Officer's
Certificate described in this subsection (a).
A-9
EXHIBIT B
Servicing Agreement
See Item 99.7
B-1
EXHIBIT C
Assignment and Assumption Agreement
[INTENTIONALLY OMITTED]
C-1
Exhibit D
Mortgage Loan Schedule
[INTENTIONALLY OMITTED]
D-1
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
--------------------------
[Date]
[Custodian]
[Address]
Attention: [ ]
In connection with the administration of the mortgages held by you as
Custodian under a certain Custodial Agreement dated as of June 1, 2003, between
Xxxxx Fargo Bank, Minnesota, National Association, as Trustee, and you, as
Custodian (the "Custodial Agreement"), the undersigned Servicer hereby requests
a release of the Mortgage File held by you as Custodian with respect to the
following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
___ 1. Mortgage Loan paid in full. (The Servicer hereby certifies that
all amounts received in connection with the loan have been or will be credited
to the Collection Account or the Certificate Account (whichever is applicable)
pursuant to the Trust Agreement.)
___ 2. Mortgage Loan being foreclosed.
___ 3. Mortgage Loan repurchased. (The Servicer hereby certifies that
the Purchase Price has been credited to the Collection Account or the
Certificate Account (whichever is applicable) pursuant to the Trust Agreement.)
___ 4. Other. (Describe.)
The undersigned acknowledges that the above Mortgage File will be held
by the undersigned in accordance with the provisions of the Trust Agreement and
will be returned to you within ten (10) days of our receipt of the Mortgage
File, except if the Mortgage Loan has been paid in full, or repurchased (in
which case the Mortgage File will be retained by us permanently).
E-1
Capitalized terms used herein shall have the meanings ascribed to them
in the Custodial Agreement.
-------------------------------------
CENDANT MORTGAGE CORPORATION
By: _________________________________
Name:
Title: Servicing Officer
E-2
EXHIBIT F
SEC CERTIFICATION
Structured Asset Securities Corporation
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx
Aurora Loan Services, Inc.
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000X
Xxxxxx, Xxxxxxxx 00000
Re: Structured Asset Securities Corporation, Mortgage Pass-Through
Certificates, Series 2003-22A
Reference is made to the Reconstituted Servicing Agreement, dated as of June 1,
2003 (the "Agreement"), by and between Xxxxxx Brothers Holdings Inc., as seller
and Cendant Mortgage Corporation, as servicer (the "Servicer"). I, [identify the
certifying individual], a [title] of the Servicer hereby certify to Aurora Loan
Services, Inc. (the "Master Servicer") and its respective officers, directors
and affiliates, that:
1. I have reviewed the information required to be delivered to the Master
Servicer pursuant to the Agreement (the "Servicing Information").
2. Based on my knowledge, the Servicing Information does not contain any
material untrue information or omit to state information necessary to make
the Servicing Information, in light of the circumstances under which such
information was provided, not misleading as of the last day of the period
covered by the Annual Statement of Compliance.
3. Based on my knowledge, the Servicing Information required to be provided to
the Master Servicer by the Servicer under the Agreement has been provided
to the Master Servicer;
4. I am responsible for reviewing the activities performed by the Servicer
under the Agreement and based upon the review required under the Agreement,
and except as disclosed in the Annual Statement of Compliance, the Annual
Independent Certified Public Accountant's Servicing Report, or otherwise in
writing submitted to the Master Servicer by the Servicer, the Servicer has,
as of the last day of the period covered by the Annual Statement of
Compliance, fulfilled its obligations under the Agreement.
CENDANT MORTGAGE CORPORATION
Name: ____________________________
Title: ____________________________
Date: ____________________________
F-1
