Execution Copy
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of November, 2004, by and between XXXXXX BROTHERS HOLDINGS
INC., a Delaware corporation ("LBH") and CITIMORTGAGE, INC. (the "Servicer"),
and acknowledged by AURORA LOAN SERVICES INC., a Delaware corporation, as master
servicer ("Aurora"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION (the "Trustee"),
recites and provides as follows:
RECITALS
WHEREAS, certain residential fixed rate mortgage loans identified on
the Mortgage Loan Schedule annexed as Schedule I hereto were purchased by Xxxxxx
Brothers Bank, FSB (the "Bank") from the Servicer and are currently being
serviced by the Servicer for the Bank pursuant to a Flow Mortgage Loan Purchase
and Servicing Agreement, dated and effective as of May 1, 2004 (the "Flow
Agreement"), a copy of which is attached as Exhibit B hereto.
WHEREAS, on or prior to the Closing Date (as defined herein), the Bank
and LBH will enter into an Assignment and Assumption Agreement, dated as of
November 1, 2004 (the "Assignment and Assumption Agreement"), pursuant to which
the Bank will assign all of its rights, title and interest in and to the
Mortgage Loans to LBH and LBH will assume all of the rights and obligations of
the Bank under the Flow Agreement to the extent that the Flow Agreement relates
to the Mortgage Loans.
WHEREAS, LBH has conveyed the mortgage loans identified on Schedule I
hereto (the "Mortgage Loans") to Structured Asset Securities Corporation
("SASCO"), a Delaware special purpose corporation (the "Depositor") which in
turn will convey the Mortgage Loans to the Trustee pursuant to a trust
agreement, dated as of November 1, 2004 (the "Trust Agreement"), among the
Trustee, Aurora, as master servicer (together with any successor master servicer
appointed pursuant to the provisions of the Trust Agreement, the "Master
Servicer") and SASCO.
WHEREAS, from and after the Closing Date, the Seller desires that the
Servicer continue to service the Mortgage Loans, and the Servicer has agreed to
do so, subject to the provisions of the Flow Agreement, as modified by this
Agreement, and the parties hereto acknowledge and agree that this Agreement
shall be treated as a Reconstitution Agreement in connection with a Pass-Through
Transfer within the meaning of the Flow Agreement, which shall govern the
Mortgage Loans for so long as such Mortgage Loans remain subject to the
provisions of the Trust Agreement.
WHEREAS, the parties hereto acknowledge and agree that 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 to terminate the rights and obligations of the
Servicer upon the occurrence and continuance of an Event of Default under
Section 14.01 of the Flow Agreement.
WHEREAS, the Seller and the Servicer intend that each of the Master
Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Custodianship. The parties hereto acknowledge that U.S. Bank
National Association and LaSalle Bank National Association will each act as
custodian of the Servicing Files for the Trustee pursuant to (i) a Custodial
Agreement, dated November 1, 2004, between U.S. Bank National Association and
the Trustee or (ii) a Custodial Agreement, dated November 1, 2004, between
LaSalle Bank National Association and the Trustee.
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 Flow Agreement, except as
otherwise modified on Exhibit A hereto, and that the provisions of the Flow
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. Trust Cut-off Date. The parties hereto acknowledge that by operation
of Section 11.01 of the Flow Agreement, the remittance of principal and interest
collections on the Mortgage Loans to be made on the December 18, 2004 Remittance
Date to the Master Servicer for the benefit of the trust fund (the "Trust Fund")
created under the Trust Agreement is to include principal collections due after
November 1, 2004 (the "Trust Cut-off Date") plus interest at the Mortgage Loan
Remittance Rate collected during the related Due Period, exclusive of any
portion thereof allocable to a period prior to the Trust Cut-off Date, with the
adjustments specified in clauses (a), (b), (c) and (d) of Section 11.01 of the
Flow Agreement.
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 Trust
Fund, shall have the same rights as the Purchaser under the Flow Agreement to
enforce the obligations of the Servicer under the Flow Agreement and the term
"Purchaser" as used in the Flow Agreement in connection with any rights of the
Purchaser shall refer to the Master Servicer, 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, as provided in
Article XIV (Default) of the Flow Agreement. Notwithstanding anything herein to
the contrary, in no event shall the Master Servicer be required to assume any of
the obligations of the Seller under the Flow 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.
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5. Notices. All notices, consents, certificates or reports
(collectively "written information") required to be delivered hereunder between
or among the parties hereto (including any third party beneficiary thereof) or
required to be provided to the Trustee shall be in writing, may be in the form
of facsimile or electronic transmission and shall be deemed received or given
when personally delivered or mailed, postage prepaid, at the address of the
recipient of such written information 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 delivered.
All written information 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
Attn: E. Xxxx Xxxxxxxxxx (SARM 2004-18)
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be on a scheduled/scheduled basis and made 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 Clearance Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SARM 2004-18
All written information required to be delivered to the Trustee
hereunder shall be delivered to the Trustee at the following address:
Xxxxx Fargo Bank, National Association
X.X. Xxx 00
Xxxxxxxx, Xxxxxxxx 00000
(or in the case of overnight deliveries:
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services - SARM 2004-18
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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All written information required to be delivered to LBH hereunder shall
be delivered to LBH at the following address:
Xxxxxx Brothers Holdings Inc.
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Dechert, LLP
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All written information required to be delivered to the Servicer
hereunder shall be delivered to the Servicer at the following address:
CitiMortgage, Inc.
0000 Xxxxxxxxxx Xxxxx
XX00
X'Xxxxxx, Xxxxxxxx 00000
Attention: Capital Markets
Facsimile: (000) 000-0000
(with a copy to Investor Reporting Department, MS314)
6. Acknowledgement. The Servicer hereby acknowledges that the rights
and obligations of the Bank under the Flow Agreement will be assigned to the LBH
on the Closing Date pursuant to the Assignment and Assumption Agreement; that
such rights and obligations, as modified by this Agreement will, in turn, be
re-assigned by the LBH to SASCO pursuant to a mortgage loan sale and assignment
agreement between LBH and SASCO (the "Mortgage Loan Sale and Assignment
Agreement"); and that such rights and obligations will simultaneously be
re-assigned by SASCO to the Trustee pursuant to the Trust Agreement. The
Servicer agrees that the Assignment and Assumption Agreement, the Mortgage Loan
Sale and Assignment Agreement and the Trust Agreement will each constitute a
valid assignment of the rights and obligations of the Bank under the Flow
Agreement to the Seller, by the Seller to SASCO, and by SASCO to the Trust Fund,
respectively. In addition, the Trust Fund will make a REMIC election. The
Servicer hereby consents to each such assignment and assumption and acknowledges
the Trust Fund's REMIC election.
7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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8. Amendments. Any amendment to this Agreement, including the
modifications to the Flow Agreement made by Exhibit A hereto, shall require a
written agreement of LBH and the Servicer and the prior written consent of the
Master Servicer and the Trustee. The party requesting such Amendment shall, at
its own expense, provide the Trustee and the Master Servicer with an Opinion of
Counsel that such amendment is permitted under the terms of this Agreement and
such amendment will not materially adversely affect the interests of
Certificateholders in the Mortgage Loans
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.
10. Reconstitution. The Seller and the Servicer agree that this
Agreement is a reconstituted agreement executed in connection with a
"Pass-Through Transfer," and that the date hereof is the "Reconstitution Date,"
each as defined in the Flow Agreement.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
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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
CITIMORTGAGE, INC.,
as Servicer
By:
-------------------------------
Name:
Title:
Acknowledged By:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:
------------------------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:___________________
Name:
Title:
EXHIBIT A
MODIFICATIONS TO THE FLOW AGREEMENT
1. The definition of "Business Day" in Article I is hereby amended as
follows:
(i) by restating clause (ii) of such definition to read as
follows:
(ii) a day on which banks and savings and loan institutions in
the State of Missouri, the State of Maryland, the State of
Minnesota, the State of Colorado, the State of Illinois or the
State of New York are authorized or obligated by law or
executive order to be closed.
(ii) by adding a new paragraph below clause (ii) as follows:
Where any reference is made to more than one Business
Day, such reference, except as otherwise expressly provided,
shall mean consecutive Business Days.
2. A new definition of "Certificate" is added to Article I to appear
immediately after the definition of "Business Day", to read as follows:
Certificate: Any of the mortgage pass-through certificates to
be issued by the Trust Fund on the Closing Date.
3. The definition of "Custodial Agreement" in Article I is hereby amended
in its entirety to read as follows:
Custodial Agreement: The custodial agreements relating to the
custody of the Mortgage Loans, between each Custodian and the
Trustee, as acknowledged by the Seller, the Depositor, the
Master Servicer and the Servicer, dated as of November 1,
2004.
4. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
Custodians: (i) U.S. Bank National Association, and its
respective successors and assigns or any successors to U.S.
Bank National Association under the applicable Custodial
Agreement as provided therein or (ii) LaSalle Bank National
Association, and its respective successors and assigns or any
successors to LaSalle Bank National Association under the
applicable Custodial Agreement as provided therein.
5. The definition of "Closing Date" in Article I is hereby amended and
restated to read as follows:
Closing Date: November 30, 2004.
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6. The definition of "Cut-off Date" in Article I is hereby amended and
restated to read as follows:
Cut-off Date: November 1, 2004.
7. The definition of "Determination Date" in Article I is hereby amended
to replace each reference therein to the "sixteenth (16th) day" with
the "fifteenth (15th) day".
8. The definition of "Mortgage Interest Rate" in Article I is hereby
amended by adding the phrase "net of any Relief Act Reduction" after
the word "Note" and before the period in such definition.
9. A new definition of "Relief Act Reduction" is hereby added to Article I
immediately following the definition of "Refinanced Mortgage Loan" to
read as follows:
Relief Act Reduction: With respect to any Mortgage Loan as to
which there has been a reduction in the amount of the interest
collectible thereon as a result of the application of the
Servicemembers Relief Act, as amended, any amount by which
interest collectible on such Mortgage Loan for the Due Date in
the related Due Period is less than the interest accrued
thereon for the applicable one-month period at the Mortgage
Interest Rate without giving effect to such reduction.
10. The definition of "Servicing Fee" in Article I is hereby amended by
replacing the word "Purchaser" with "Trust Fund" in each instance it
appears therein.
11. The definition of "Servicing Fee Rate" in Article I is hereby amended
and restated to read as follows:
Servicing Fee Rate: 0.250% per annum.
12. Section 10.07 (Liquidation of Mortgage Loans) is hereby amended by
restating the penultimate sentence of the second paragraph to read as
follows:
"The cost for such inspection or review shall be borne by the
Trust Fund".
13. Section 10.09 (Establishment of Custodial Account; Deposits in
Custodial Account) is hereby amended as follows:
(i) by replacing the words "[name of Seller] in trust for
Purchaser and various Mortgagors - Fixed Rate Mortgage Loans"
in the fourth and fifth lines of the first sentence of the
first paragraph with the words "in trust for the Trustee for
the SARM 2004-18 Trust;"
14. Section 10.14 (Transfer of Accounts) is hereby amended by
replacing the reference to "Purchaser" in the third sentence
thereof with the "Trust Fund."
A-2
15. Section 10.17 (Title, Management and Disposition of REO
Property) is hereby amended as follows:
(i) by replacing the reference to "Purchaser" in the second and
third lines of the first paragraph with "Trustee for the
benefit of the Trust Fund"; in the seventh line thereof with
"Trust Fund"; and in the eighth and ninth line thereof with
"Trustee;"
(ii) by replacing the reference to "Purchaser" in each place it
appears in the second paragraph thereof with "the Trustee on
behalf of the Trust Fund;"
(iii) by amending and restating the second sentence of the sixth
paragraph as follows:
"Upon the request of the Master Servicer, and at the Trust
Fund's expense, the Servicer shall cause an appraisal of the
REO Property to be performed for the Trust Fund";
(iv) by replacing the reference to "Purchaser" in the last line of
the sixth paragraph to "Master Servicer for deposit into the
collection account established for the Trust Fund."
16. Section 10.20 (Maintenance of PMI Policy; Claims) is hereby amended by:
(i) replacing the reference to "Purchaser" in the first sentence
of the first paragraph thereof with "Trust Fund"; and
(ii) replacing the reference to "Purchaser" in the second paragraph
thereof to "Trust Fund."
17. Section 11.01(Distributions) is hereby amended by:
(i) replacing the words "to the account designated in writing by
Purchaser of record on the preceding Record Date" in the first
sentence of the first paragraph with "to the Account specified
by the Master Servicer in Section 4 of this Reconstituted
Servicing Agreement."
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18. Section 11.02 (Statements to Purchaser) is hereby deleted in its
entirety and replaced with the following:
Section 5.02 Statements to Master Servicer.
Not later than the tenth calendar day of each month (or if
such calendar day is not a Business Day, the immediately
succeeding Business Day), the Servicer shall furnish to the
Master Servicer (i) a monthly remittance advice mutually
agreed to between the Servicer and the Master Servicer)
relating to the preceding Due Period 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.
In addition, within a reasonable period of time after the end
of each calendar year, the Servicer shall provide the Master
Servicer with a report providing data on an annual aggregate
basis concerning the Mortgage Loans as is necessary for the
Trustee to prepare the Trust Fund's federal income tax return
as the Trustee may reasonably request from time to time.
19. Section 12.04 (Annual Statement as to Compliance) is hereby amended as
follows:
(a) by replacing the reference to "Purchaser" therein with "Master
Servicer" and
(b) by adding the words, "in the form of Exhibit M attached to the
Flow Agreement" after the word "Certificate" in the second
line thereto:
20. Section 12.05 (Annual Independent Public Accountants' Servicing Report)
is hereby amended by replacing the reference to "Purchaser" therein
with the words "Master Servicer".
21. Section 13.01 (Indemnification; Third Party Claims) is hereby amended
to replace the reference to "Purchaser" each time it appears therein
with "Trust Fund".
22. Section 13.04 (Seller Not to Resign) is hereby amended as follows:
(i) by replacing each reference to "Purchaser" with "Master
Servicer and the Trustee;"
23. Section 14.02 (Waiver of Defaults) is hereby amended by replacing the
reference to "Purchaser" in the first line thereof with "Master
Servicer with the prior written consent of the Trustee."
24. Section 15.01 (Termination) is hereby amended as follows:
(i) by deleting clause (b) thereof in its entirety and replacing
it with the following:
(b) mutual consent of the Servicer and the Trustee in writing,
provided such termination is also acceptable to the Master
Servicer and the Rating Agencies.
A-4
25. Section 15.02 (Termination Without Cause) is hereby amended as follows:
(i) by deleting the first paragraph thereof and replacing it with
the following:
Upon 30 days' prior notice, in writing and delivered
to the Trustee, the Master Servicer and the Servicer by
registered mail as provided in Section 16.06, LBH may
terminate the rights and obligations of the Servicer under
this Agreement without cause. The Master Servicer or the
Trustee shall have no right to terminate the Servicer pursuant
to the foregoing sentences of this Section 15.02. In
connection with any such termination pursuant to this Section
15.02, LBH will be responsible for (i) payment of any
Termination Fees due to the terminated Servicer and (ii)
reimbursing the Servicer for all unreimbursed Servicing
Advances, Monthly Advances, Servicing Fees and other
reasonable or necessary out-of-pocket costs associated with
any such servicing transfer at the time of such termination
without any right of reimbursement to LBH from the Trust Fund.
26. Section 16.01 (Successor to Seller) is hereby amended as
follows:
(i) by replacing the words "Prior to" with "Upon" in the first
line of the first paragraph thereof;
(ii) by adding the words ", in accordance with the Trust
Agreement," after the word "shall" in the second line of the
first paragraph thereof;
(iii) by adding the following new sentences immediately following
the first sentence of the first paragraph thereof to read as
follows:
Prior to termination of the Servicer's
responsibilities, rights, duties and obligations under this
Agreement pursuant to Section 15.02, LBH shall appoint a
successor which shall succeed to all rights and assume all of
the responsibilities, duties and liabilities of the Servicer
under this Agreement. Any successor to the Servicer shall be a
Xxxxxxx Mac- or Xxxxxx Xxx-approved servicer and shall be
subject to the approval of the Master Servicer and each Rating
Agency, as evidenced by a letter from such Rating Agency
delivered to the Trustee and the NIMS Insurer that the
transfer of servicing will not result in a qualification,
withdrawal or downgrade of the then-current rating of any of
the Certificates.
(iv) by adding the following two paragraphs after the fourth
paragraph thereof:
In the event the Servicer is terminated pursuant to
Section 15.02, LBH shall be responsible for payment without
reimbursement from the Trust Fund for any out-of-pocket costs
incurred by the Servicer and the Master Servicer in connection
with the transfer of the Mortgage Loans to a successor
servicer.
Except as otherwise provided in the Agreement, all
reasonable costs and expenses incurred in connection with any
transfer of servicing hereunder (as a result of termination
for cause or resignation of the Servicer), 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, including the completion, correction
or manipulation of such servicing data as may be required to
correct any errors or insufficiencies in the servicing data,
to the successor servicer shall be paid by the terminated or
resigning Servicer from its own funds without reimbursement.
X-0
Xxxxxxx X-0
Flow Mortgage Loan Purchase and Servicing Agreement
(Dated and effective as of May 1, 2004)
[Intentionally Omitted]
B-1-1
Schedule I
Schedule of Mortgage Loans
(Including Prepayment Charge Schedule)
[Intentionally Omitted]
Sch I-1
