EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into as
of the 1st day of April, 2005, by and among XXXXXX BROTHERS HOLDINGS, INC., a
Delaware corporation ("LBH"), CITIMORTGAGE, INC. (the "Servicer"), AURORA LOAN
SERVICES LLC, as master servicer (the "Master Servicer"), and acknowledged by
JPMORGAN CHASE BANK, N.A., as trustee (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 (the "Mortgage Loans") 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 April 1,
2005 (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, on the Closing Date, pursuant to a Pass-Through Transfer (as
defined in the Flow Agreement), LBH will convey 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 April 1, 2005 (the "Trust
Agreement"), among the Trustee, the Depositor and the Master Servicer;
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;
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. 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.
2. 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 May 18, 2005 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
April 1, 2005 (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.
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 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
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.
4. Notices. All notices, consents, certificates or reports (collectively
"written information") required to be delivered hereunder between or among the
parties hereto 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.
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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 LLC
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx
Attn: E. Xxxx Xxxxxxxxxx (SARM 2005-5)
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 LLC
Master Servicing Payment Clearance Account
Account Number: 666-611059
Beneficiary: Aurora Loan Services LLC
For further credit to: SARM 2005-5
All written information required to be delivered to the Trustee hereunder
shall be delivered to the Trustee at the following address:
JPMorgan Chase Bank, N.A.
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Services/Global Debt - SARM 2005-5
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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: Manager, Contract Finance (SARM 2005-5)
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Dechert, LLP
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:
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Servicer at the following address:
CitiMortgage, Inc.
0000 Xxxxxxxxxx Xxxxx
XX00
X'Xxxxxx, Xxxxxxxx 00000
Attention: Capital Markets
(with a copy to Investor Reporting Department, MS314)
5. 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.
6. 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.
7. 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.
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.
9. 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.
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Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By: ____________________________________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
CITIMORTGAGE, INC.,
as Servicer
By: ____________________________________
Name:
Title:
AURORA LOAN SERVICES LLC,
as Master Servicer
By: ____________________________________
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
Acknowledged By:
JPMORGAN CHASE BANK, N.A.,
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 "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 April 1, 2005.
4. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
Custodian: U.S. Bank National Association or LaSalle Bank National
Association, as applicable, and their respective successors and
assigns or any successors to the Custodians under the Custodial
Agreements as provided therein.
5. The definition of "Closing Date" in Article I is hereby amended and
restated to read as follows:
Closing Date: April 29, 2005.
6. The definition of "Cut-off Date" in Article I is hereby amended and
restated to read as follows:
Cut-off Date: April 1, 2005.
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.
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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. 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".
12. 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 2005-5 Trust;"
13. Section 10.14 (Transfer of Accounts) is hereby amended by replacing the
reference to "Purchaser" in the third sentence thereof with the "Trust
Fund."
14. 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."
15. 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
A-2
(ii) replacing the reference to "Purchaser" in the second paragraph
thereof to "Trust Fund."
16. 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."
17. Section 11.02 (Statements to Purchaser) is hereby deleted in its entirety
and replaced with the following:
Section 5.02 Statements to Master Servicer.
The Servicer shall deliver or cause to be delivered to the
Master Servicer executed copies of the custodial and escrow account
letter agreements pursuant to Sections 4.04 and 4.06 within 30 days
of the Closing Date.
Not later than the tenth calendar day of each month, the
Servicer shall furnish to the Master Servicer an electronic file
providing loan level accounting data for the period ending on the
last Business Day of the preceding month in the format mutually
agreed to between the Servicer and the Master Servicer. The
information required by Exhibit C-1 is limited to that which is
readily available to the Servicer and is mutually agreed to by the
Servicer and 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.
18. 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:
19. Section 6.05 (Annual Independent Public Accountants' Servicing Report) is
hereby amended by replacing the reference to "Purchaser" therein with the
words "Master Servicer".
20. Section 13.01 (Indemnification; Third Party Claims) is hereby amended to
replace the reference to "Purchaser" each time it appears therein with
"Trust Fund".
21. 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;"
22. 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."
A-3
23. 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.
24. 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
25. 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 Mae-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.
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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.
A-5
Exhibit B
Flow Mortgage Loan Purchase and Servicing Agreement
(Dated and effective as of May 1, 2004)
See Exhibit 99.8
B-1
EXHIBIT C-1
FORM OF MONTHLY REMITTANCE ADVICE
FIELD NAME DESCRIPTION FORMAT
---------- ----------- ------
INVNUM INVESTOR LOAN NUMBER Number no decimals
SERVNUM SERVICER LOAN NUMBER, REQUIRED Number no decimals
BEGSCHEDBAL BEGINNING SCHEDULED BALANCE FOR SCHED/SCHED Number two decimals
BEGINNING TRAIL BALANCE FOR ACTUAL/ACTUAL,
REQUIRED
SCHEDPRIN SCHEDULED PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED Number two decimals
ACTUAL PRINCIPAL COLLECTED FOR ACTUAL/ACTUAL,
REQUIRED, .00 IF NO COLLECTIONS
CURT1 CURTAILMENT 1 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT1DATE CURTAILMENT 1 DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
CURT1ADJ CURTAILMENT 1 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
CURT2 CURTAILMENT 2 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT2DATE CURTAILMENT 2 DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
CURT2ADJ CURTAILMENT 2 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
LIQPRIN PAYOFF, LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
OTHPRIN OTHER PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
PRINREMIT TOTAL PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
INTREMIT NET INTEREST REMIT, INCLUDE PAYOFF INTEREST, Number two decimals
.00 IF NOT APPLICABLE
TOTREMIT TOTAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
ENDSCHEDBAL ENDING SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED Number two decimals
ENDING TRIAL BALANCE FOR ACTUAL/ACTUAL
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDACTBAL ENDING TRIAL BALANCE Number two decimals
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDDUEDATE ENDING ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT DD-MMM-YY
ACTCODE 60 IF PAIDOFF, BLANK IF NOT APPLICABLE Number no decimals
ACTDATE ACTUAL PAYOFF DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
INTRATE INTEREST RATE, REQUIRED Number seven decimals
Example .0700000 for 7.00%
SFRATE SERVICE FEE RATE, REQUIRED Number seven decimals
Example .0025000 for .25%
PTRATE PASS THRU RATE, REQUIRED Number seven decimals
X-0-0
XXXXX X&X CONSTANT, REQUIRED Example .0675000 for 6.75%
.00 IF PAIDOFF Number two decimals
C-1-2
Schedule I
Schedule of Mortgage Loans
[INTENTIONALLY OMITTED]
Sch. I-1
