EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of September, 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 JPMORGAN CHASE BANK (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 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
September 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 September 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 and the Trustee
desire 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.
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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 parties hereto agree as follows:
AGREEMENT
1. Custodianship. The parties hereto acknowledge that U.S. Bank
National Association will act as custodian of the Servicing Files for the
Trustee pursuant to a Custodial Agreement, dated September 1, 2004, between U.S.
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 October 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
September 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 2004-15)
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 2004-15
All written information required to be delivered to the Trustee
hereunder shall be delivered to the Trustee at the following address:
JPMorgan Chase Bank
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Institutional Trust Services/Global Debt -
SARM 2004-15
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
Telephone: ( )
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
JPMORGAN CHASE BANK,
as Trustee
By:_________________________________
Name: Xxx Xxxxx
Title: Assistant Vice President
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 "Citibank", 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 agreement relating to the
custody of the Mortgage Loans, between the Custodian and the
Trustee, as acknowledged by the Seller, the Depositor, the
Master Servicer and the Servicer, dated as of September 1,
2004.
4. The definition of "Custodian" in Article I is hereby amended in its entirety
to read as follows:
Custodian: U.S. Bank National Association, and its respective
successors and assigns or any successors to the Custodian
under the 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: September 30, 2004.
6. The definition of "Cut-off Date" in Article I is hereby amended and restated
to read as follows:
Cut-off Date: September 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".
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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: loan # 626305640: 0.375% per annum; loan
# 626404324: 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 2004-15 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."
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:
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"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 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."
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".
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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:
(ii) mutual consent of the Servicer and the Trustee in writing, provided
such termination is also acceptable to the Master Servicer and the
Rating Agencies.
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; and
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.
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(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)
[See Exhibit 99.7]
B-1-1
Schedule I
Schedule of Mortgage Loans
(Including Prepayment Charge Schedule)
[INTENTIONALLY OMITTED]
Sch I - 1
