Exhibit 99.5
EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into as
of the 1st day of October, 2002, by and between XXXXXX BROTHERS BANK, FSB, a
federal savings bank (the "Bank"), and CHASE MANHATTAN MORTGAGE CORPORATION, a
New Jersey corporation (the "Servicer"), having an office at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000, recites and provides as follows:
RECITALS
WHEREAS, Centre Capital Group, Inc. ("CCGI") acquired certain first lien,
fixed and adjustable rate, conventional mortgage loans on a servicing-retained
basis from the Servicer, which mortgage loans were either originated or acquired
by the Servicer.
WHEREAS, such mortgage loans are currently being serviced by the Servicer
for CCGI pursuant to a Mortgage Loan Purchase, Warranties and Servicing (Whole
Loan Series 2002 WL-K) (the "Servicing Agreement"), dated as of August 1, 2002
and annexed as Exhibit B hereto, by and between CCGI, as owner, and the
Servicer, as servicer.
WHEREAS, pursuant to the Master Mortgage Loan Purchase and Warranties
Agreement, dated as of February 1, 2002 (the "Master Mortgage Loan Purchase
Agreement"), and annexed as Exhibit C hereto, the Bank has purchased or received
from CCGI all of CCGI's right, title and interest in and to certain of the
mortgage loans currently serviced under the Servicing Agreement (hereinafter,
the "Mortgage Loans") and assumed for the benefit of the Servicer the
obligations of CCGI as owner under such Agreement.
WHEREAS, the Bank has conveyed certain of the Mortgage Loans, as
identified on Exhibit D hereto (the "Serviced Mortgage Loans"), to Structured
Asset Securities Corporation, a Delaware special purpose corporation ("SASCO"),
which in turn has conveyed the Serviced Mortgage Loans to Citibank, N.A. (the
"Trustee"), pursuant to a trust agreement dated as of October 1, 2002 (the
"Trust Agreement"), among the Trustee, Aurora Loan Services Inc., as master
servicer ("Aurora," and, together with any successor Master Servicer appointed
pursuant to the provisions of the Trust Agreement, the "Master Servicer") and
SASCO.
WHEREAS, the Bank desires that the Servicer continue to service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
rights of the Bank (with the consent of the Master Servicer) to terminate the
rights and obligations of the Servicer hereunder at any time without cause in
accordance with Section 10.02 of the Servicing Agreement and to the other
conditions set forth herein.
WHEREAS, the Bank and the Servicer agree that the provisions of the
Servicing Agreement shall continue to apply to the Serviced Mortgage Loans, but
only to the extent provided herein and that this Agreement shall constitute a
Reconstitution Agreement (as such term is defined in the Servicing Agreement)
which shall govern the Serviced Mortgage Loans for so long as such Serviced
Mortgage Loans remain subject to the provisions of the Trust Agreement.
WHEREAS, the Master Servicer and any successor master servicer shall be
obligated, among other things, to supervise the servicing of the Serviced
Mortgage Loans on behalf of the Trustee, and shall have the right under the
conditions specified herein to terminate for cause the rights and obligations of
the Servicer under this Agreement.
WHEREAS, the Bank 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 Bank 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 (except for the definition of the term "Cut-off Date").
2. Custodianship. The parties hereto acknowledge that Xxxxx Fargo Bank
Minnesota, N.A. will act as custodian of the Serviced Mortgage Files for the
Trustee pursuant to a Custodial Agreement, dated October 1, 2002, between Xxxxx
Fargo Bank Minnesota, N.A. and the Trustee.
3. Servicing. The Servicer agrees, with respect to the Serviced Mortgage
Loans, to perform and observe the duties, responsibilities and obligations that
are to be performed and observed under the provisions of the Servicing
Agreement, except as otherwise provided herein and on Exhibit A hereto, and that
the provisions of the Servicing Agreement, as so modified, are and shall be a
part of this Agreement to the same extent as if set forth herein in full.
4. Trust Cut-off Date. The parties hereto acknowledge that by operation of
Section 4.04 and Section 5.01 of the Servicing Agreement, the remittance on
November 18, 2002 to the Trust Fund is to include principal collected after
October 1, 2002 (the "Trust Cut-off Date") through the preceding Determination
Date plus interest, at the Mortgage Loan Remittance Rate collected through such
Determination Date exclusive of any portion thereof allocable to a period prior
to the Trust Cut-off Date, with the adjustments specified in clauses (ii), (iii)
and (iv) of Section 5.01 of the Servicing Agreement.
5. Master Servicing; Termination of Servicer. The Servicer, including any
successor servicer hereunder, shall be subject to the supervision of the Master
Servicer, which Master Servicer shall be obligated to ensure that the Servicer
services the Serviced Mortgage Loans in accordance with the provisions of this
Agreement. The Master Servicer, acting on behalf of the Trustee and the SASCO
2002-22H Trust Fund (the "Trust Fund") created pursuant to the Trust Agreement,
shall have the same rights as the Bank 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 Purchaser shall refer to the Trust
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Fund or, as the context requires, the Master Servicer or the Trustee acting in
its capacity as agent for the Trust Fund, except as otherwise specified in
Exhibit A hereto. The Master Servicer shall be entitled to terminate the rights
and obligations of the Servicer under this Agreement upon the failure of the
Servicer to perform any of its obligations under this Agreement, which failure
results in an Event of Default as provided in Section 9.01 of the Servicing
Agreement. Notwithstanding anything herein to the contrary, in no event shall
the Master Servicer assume any of the obligations of the Bank 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.
6. No Representations. Neither the Servicer nor the Master Servicer shall
be obligated or required to make any representations and warranties regarding
the characteristics of the Serviced Mortgage Loans (other than those
representations and warranties made by the Servicer in Section 3.02 of the
Servicing Agreement) in connection with the transactions contemplated by the
Trust Agreement and issuance of the Certificates issued pursuant thereto.
7. 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
Attn: E. Xxxx Xxxxxxxxxx, Master Servicing,
SASCO 2002-22H
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled to the following wire account:
JPMorgan Chase Bank
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc.,
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services, Inc.
For further credit to: SASCO 2002-22H
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All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
Citibank, N.A.
000 Xxxx Xxxxxx
14th Floor, Zone 3
Xxx Xxxx, XX 00000
Attention: Structured Finance-SASCO 2002-22H
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to the Bank hereunder shall be
delivered to the Bank at the following address:
Xxxxxx Brothers Bank, FSB
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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.
8. 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.
9. 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 BANK, FSB,
as Owner
By:_____________________________________
Name: Xxxx Xxxxxx
Title: Vice President
CHASE MANHATTAN MORTGAGE
CORPORATION, as Servicer
By:_____________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
Acknowledged By:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:_________________________________________
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
CITIBANK, N.A.,
as Trustee
By:_________________________________________
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to the Servicing Agreement
1. Master Servicer as Agent of the Trust Fund. The parties hereto acknowledge
that all consents, approvals, recommendations and directions required to
be obtained by the Servicer from the Purchaser pursuant to Articles IV, V
and VI of the Servicing Agreement shall be obtained by the Servicer from
the Master Servicer in its capacity as master servicer of the Trust Fund.
2. The definition of "Custodial Account" in Article I is hereby amended in
its entirety to read as follows:
Custodial Account: Each separate demand account or accounts
created and maintained pursuant to Section 4.04 which shall be
entitled "Chase Manhattan Mortgage Corporation, in trust for the
Structured Asset Securities Corporation 2002-22H Trust Fund" and
shall be established in an Eligible Account.
3. The definition of "Escrow Account" in Article I is hereby amended in its
entirety to read as follows:
Escrow Account: Each separate trust account or accounts
created and maintained pursuant to Section 4.06 which shall be
entitled "Chase Manhattan Mortgage Corporation, in trust for the
Structured Asset Securities Corporation 2002-22H Trust Fund" and
shall be established in an Eligible Account.
4. The definition of "Prepayment Interest Shortfall Amount" in Article I is
hereby amended in its entirety to read as follows:
Prepayment Interest Shortfall Amount: With respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or
in part during any Due Period, which Principal Prepayment was
applied to such Mortgage Loan prior to such Mortgage Loan's Due Date
in such Due Period, the amount of interest (net the related
Servicing Fee for Principal Prepayments in full only) that would
have accrued on the amount of such Principal Prepayment during the
period commencing on the date as of which such Principal Prepayment
was applied to such Mortgage Loan and ending on the day immediately
preceding such Due Date, inclusive.
5. Section 4.01 (Seller to Act as Servicer) is hereby amended as follows:
(i) by deleting the first sentence of the second paragraph of such
section and replacing it with the following:
Consistent with the terms of this Agreement, the Bank may waive,
modify or vary any term of any Mortgage Loan or consent to the
postponement of any such term or in any manner grant indulgence to any
Mortgagor if in the Bank's reasonable and prudent
determination such waiver, modification, postponement or indulgence is not
materially adverse to the Purchaser, provide, however, that unless the
Mortgagor is in default with respect to the Mortgage Loan or such default
is, in the judgment of the Bank, imminent, the Bank shall not permit any
modification with respect to any Mortgage Loan that would change the
Mortgage Interest Rate, 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.
(ii) by adding the following to the end of the second paragraph of such
section:
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Servicer shall
forward to the Master Servicer copies of any documents evidencing
such assumption, modification, consolidation or extension.
Notwithstanding anything to the contrary contained in the Servicing
Agreement, the Servicer shall not, unless the Mortgagor is in
default with respect to the Mortgage Loan or default is imminent (in
the judgment of the Servicer), make or permit any modification,
waiver or amendment of any Mortgage Loan which would change its
Mortgage Rate, forgive the payment of principal and/or interest,
reduce or increase the outstanding principal balance or change the
final maturity date.
6. Section 4.13 (Title, Management and Disposition of REO Property) is hereby
amended by deleting the first and second sentences of the fifth paragraph
of such section and replacing them with the following:
The Servicer shall use commercially reasonable best efforts to
dispose of the REO Property as soon as possible and shall sell such
REO Property in any event within three years after title has been
taken to such REO Property, unless (i) a REMIC election has not been
made with respect to the arrangement under which the Mortgage Loans
and the REO Property are held, and (ii) the Servicer determines, and
gives an appropriate notice to the Purchaser to such effect that a
longer period is necessary for the orderly liquidation of such REO
Property. If a longer period than three (3) years is permitted under
the foregoing sentence and is necessary to sell any REO Property,
the Servicer shall report monthly to the Purchaser as to the
progress being made in selling such REO Property.
7. Section 6.04 (Annual Statement as to Compliance) is hereby amended by
replacing the words "April 30 of each year, beginning with 2001" to "the
last day of February of each year, beginning with February 28, 2003" and
Section 6.05 (Annual Independent Certified Public Accountant's Servicing
Report) is hereby amended by replacing the words "within one hundred
twenty (120) days of Seller's fiscal year end (December 31 of each year
beginning December 31, 2001)" with the words "on or before the last day of
February of each year, beginning with February 28, 2003".
8. Section 8.01 (Indemnification; Third Party Claims) is hereby amended and
restated in its entirety to read as follows:
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The Servicer shall indemnify the Trust Fund, the Trustee, the
Master Servicer and the Bank 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, as applicable to such
indemnified party's interest, that any of such parties may sustain
in any way related to the failure of the Servicer to perform its
duties and service the Mortgage Loans in strict compliance with the
terms of this Agreement. The Servicer further agrees to indemnify
the Trust Fund, the Trustee, the Master Servicer, and the Bank and
hold each such parties harmless against any and all claims, losses,
damages, penalties, fees; forfeitures, legal fees and related costs,
judgments, and any other costs, fees and expenses, as applicable to
such indemnified party's interest, that such parties may sustain in
any way related to a breach of a representation and warranty set
forth in Section 3.01 or Section 3.02 of this Agreement. The
Servicer immediately shall notify the Master Servicer 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
Servicer shall follow any written instructions received from the
Master Servicer in connection with such claim but shall only be
required to make advances in connection with the defense of such
claim if the Servicer in its reasonable judgment determines that
reimbursement of such advances will be recoverable from the Trust
Fund (or the Bank or the Master Servicer acting on behalf of the
Trust Fund). The Trustee from the assets of the Trust Fund promptly
shall reimburse the Servicer for all amounts advanced by it pursuant
to the preceding sentence except, to the extent of any losses
related to the Servicer's wrongdoing, when the claim is in any way
related to the Servicer's indemnification for breaches of a
representation or warranty set forth in Section 3.01 or Section 3.02
or the failure of the Servicer to service and administer the
Mortgage Loans in strict compliance with the terms of this
Agreement, or the gross negligence, bad faith or willful misconduct
of the Servicer.
The Trust Fund, the Bank and the Master Servicer shall each
respectively indemnify the Servicer and hold it harmless against any
and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that the Servicer may sustain
in any way related to such party's failure to perform its respective
duties in compliance with the terms of this Agreement, or, in the
case of the Master Servicer, to master service and administer the
Mortgage Loans in compliance with this Agreement and the Trust
Agreement. The provisions of this Section 8.01 shall survive
termination of this Agreement.
9. Section 9.01 is hereby amended by changing all references to "Purchaser"
in the paragraph following clause (ix) of such section to "Master
Servicer."
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10. Section 9.02 (Waiver of Defaults) is hereby amended by changing the
reference to "Purchaser" therein to the "Master Servicer with the prior
consent of the Trustee".
11. Section 10.02 (Termination Without Cause) is hereby amended by changing
all references to "Purchaser" in such section to "Bank."
12. Section 12.01 (Successor to the Seller) is hereby amended in its entirety
to read as follows:
Simultaneously with the termination of the Servicer's
responsibilities and duties under this Agreement (a) pursuant to
Sections 4.13, 8.04, 9.01, 10.01 or 10.02, 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 8.02 hereof 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, the Bank, 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 3.01, 3.02 and 3.03 and the remedies available to the
Trustee under Section 8.01, it being understood and agreed that the
provisions of such Sections 3.01, 3.02, 3.03 and 8.01 shall be
applicable to the Servicer, with respect to the period prior to the
Servicer's resignation or removal, notwithstanding any such
resignation or termination of the Servicer, or the termination of
this Agreement.
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Within a reasonable period of time, but in no event longer
than 90 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 3.01 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 Sections 4.13,
8.04, 9.01, 10.01 or 10.02 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 (i) within three (3) Business Days
to the successor Servicer the funds in the Custodial Account and
Escrow Account and (ii) within a reasonable period of time, but in
no event longer than 90 days of the appointment of a successor
servicer, 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.
Except as otherwise provided in this Agreement, all reasonable
costs and expenses incurred in connection with any transfer of
servicing hereunder as a result of termination or removal of the
Servicer for cause pursuant to Section 9.01 of this Servicing
Agreement, 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 Servicer hereunder, or of transferring the Servicing Files
and the other necessary data to the successor servicer shall be paid
by the terminated Servicer from its own funds without reimbursement.
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13. Intended Third Party Beneficiaries. 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.
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EXHIBIT B
Mortgage Loan Purchase, Warranties and Servicing Agreement
[See Exhibit 99.13]
EXHIBIT C
Master Mortgage Loan Purchase Agreement
[INTENTIONALLY OMITTED]
EXHIBIT D
Mortgage Loan Schedule
[INTENTIONALLY OMITTED]
