EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of December, 2005, by and between XXXXXX BROTHERS HOLDINGS
INC., a Delaware corporation (the "Seller"), and HSBC MORTGAGE CORPORATION
(USA)., a Delaware corporation (the "Servicer"), having an office at 0000 Xxxxxx
Xxxxxx, Xxxxx, XX 00000, and acknowledged by AURORA LOAN SERVICES LLC, a
Delaware limited liability company ("Aurora"), and U.S. Bank National
Association, a national banking association (the "Trustee"), recites and
provides as follows:
RECITALS
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Bank") acquired certain
mortgage loans (the "Mortgage Loans") from the Servicer pursuant to the Master
Mortgage Loan Purchase and Servicing Agreement, dated as of November 1, 2005, by
and between the Bank and the Servicer (the "Servicing Agreement"), which is
annexed hereto as Exhibit B.
WHEREAS, the Mortgage Loans are currently being serviced by the
Servicer for the Bank pursuant to the Servicing Agreement.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated as
of December 1, 2005 (the "Assignment and Assumption Agreement") and annexed
hereto as Exhibit C, the Bank has assigned all of its rights, title and interest
in the Mortgage Loans as well as all of its rights and obligations under the
Servicing Agreement to the Seller, and the Seller has accepted such assignment.
WHEREAS, the Seller has conveyed certain Mortgage Loans identified on
Exhibit D hereto (the "Serviced Mortgage Loans") to Structured Asset Securities
Corporation, a Delaware special purpose corporation ("SASCO") pursuant to a
Mortgage Loan Sale and Assignment Agreement dated as of December 1, 2005 (the
"Mortgage Loan Sale and Assignment Agreement"), which in turn has conveyed the
Serviced Mortgage Loans to the Trustee, pursuant to a trust agreement, dated as
of December 1, 2005 (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"), [Xxxxx Fargo
Bank, National Association, as securities administrator (the "Securities
Administrator")] and SASCO.
WHEREAS, the Seller 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 Seller and the Master Servicer to terminate the rights and
obligations of the Servicer hereunder as set forth herein and to the other
conditions set forth herein.
WHEREAS, the Seller 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 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 Seller and the Servicer intend that each of the Master
Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Seller and the Servicer hereby
agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this Agreement,
including Exhibit A hereto and any provisions of the Servicing Agreement
incorporated by reference herein (regardless of whether such terms are defined
in the Servicing Agreement), shall have the meanings ascribed to such terms in
the Trust Agreement.
2. Custodianship. The parties hereto acknowledge that U.S. Bank National
Association will act as custodian (the "Custodian") of the Serviced Mortgage
Files for the Trustee pursuant to a Custodial Agreement, dated December 1, 2005,
between the Custodian 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
Subsections 11.04 and 11.14 of the Servicing Addendum to the Servicing Agreement
(the "Servicing Addendum"), the remittance on January 18, 2005 to the Trust Fund
is to include principal due after December 1, 2005 (the "Trust Cut-off Date")
plus interest 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 clause (b) of Subsection 11.14 of the Servicing
Addendum. On each Remittance Date the Servicer shall remit by wire transfer of
immediately available funds to the account designated in writing on the
preceding Record Date by the Master Servicer, acting in its capacity as Agent
for the Trust Fund (a) all Monthly Payments due in the Due Period prior to such
Remittance Date and received by the Servicer prior to the related Determination
Date, plus (b) all amounts, if any, which the Servicer is obligated to
distribute pursuant to Subsection 11.29, plus (c) any amounts attributable to
Principal Prepayments received in the calendar month preceding the month in
which the Remittance Date occurs, together with any additional interest required
to be deposited in the Custodial Account in connection with such Principal
Prepayments in accordance with Subsection 11.04(xi), minus (vii) all amounts
that may be withdrawn from the Custodial Account pursuant to Subsections
11.05(ii) through (v). The parties hereto acknowledge that the closing of the
SARM 2005-23 mortgage securitization will take place on December 30, 2005 (the
"Closing Date").
5. Servicing Fee. The obligation of the Trust Fund to pay Servicing Fee set
forth the Servicing Agreement is payable solely from the interest portion
(including recoveries with respect to interest from Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds and REO Disposition Proceeds to the
extent permitted by Subsection 11.05 of the Servicing Addendum to the Servicing
Agreement) of the Monthly Payment collected by the Servicer or as otherwise
provided under Subsection 11.05 of the Servicing Addendum.
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6. 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 SARM
2005-23 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 Fund or, as the context requires, the
Master Servicer acting in its capacity as agent for the Trust Fund, except as
otherwise specified in Exhibit A hereto. The Master Servicer shall be entitled
to terminate the rights and obligations of the Servicer under this Agreement
upon the failure of the Servicer to perform any of its obligations under this
Agreement, which failure results in an Event of Default as provided in
Subsection 14.01 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.
7. 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 Subsection 7.02 of the
Servicing Agreement) in connection with the transactions contemplated by the
Trust Agreement and issuance of the Certificates issued pursuant thereto.
8. 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 LLC
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Mail Stop Code 3195
Attention: E. Xxxx Xxxxxxxxxx, Master Servicing, SARM 2005-23
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled basis to the following wire
account:
0
XXXxxxxx Xxxxx Xxxx
Xxx Xxxx, Xxx Xxxx
ABA#: 000-000-000
Account Name: Aurora Loan Services LLC, Master Servicing Payment
Clearing Account
Account No.: 066-611059
Beneficiary: Aurora Loan Services LLC
For further credit to: SARM 2005-23
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
U.S. Bank National Association
0 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Corporate Trust Services
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All notices required to be delivered to the Seller hereunder shall be
delivered to the Seller at the following address:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Contract Finance - Xxxxxx Xxxxxx
Telephone: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Dechert LLP
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
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.
9. 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.
10. 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.
[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: Xxxxx Xxxxxxx
Title: Authorized Signatory
HSBC MORTGAGE CORPORATION (USA),
as Servicer
By: ___________________________________
Name:
Title:
ACKNOWLEDGED BY:
AURORA LOAN SERVICES LLC,
as Master Servicer
By:___________________________________
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
U.S. BANK NATIONAL ASSOCIATION
as Trustee
By:___________________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to the Servicing Agreement
1. Unless otherwise specified herein, any provisions of the Servicing
Agreement, including definitions, relating to (i) representations and
warranties relating to the Mortgage Loans and not relating to the servicing
of the Mortgage Loans, (ii) Mortgage Loan repurchase obligations (which
will be assigned pursuant to the Servicing Agreement), (iii) Whole Loan
Transfers, Agency Transfers and Pass-Through Transfers, and (iv)
Assignments of Mortgage, shall be disregarded for purposes relating to this
Agreement. With the exception of the Servicing Addendum in Exhibit 8 of the
Servicing Agreement, all other exhibits and all references to such exhibits
shall be disregarded.
2. A new definition of "Best Efforts" is hereby added to Section 1 to
immediately follow the definition of "Balloon Loan," to read as follows:
"Best Efforts": Efforts determined to be reasonably diligent by the
Servicer in its reasonable discretion. Such efforts do not require the
Servicer to enter into any litigation, arbitration or other legal or
quasi-legal proceeding, nor do they require the Servicer to advance or
expend fees or sums of money in addition to those specifically set
forth in this Agreement.
3. The definition of "Determination Date" is hereby amended and restated in
its entirety to read as follows:
"Determination Date": With respect to each Distribution Date, the
fifteenth (15th) day of the calendar month in which such Distribution
Date occurs or, if such fifteenth (15th) day is not a Business Day,
the Business Day immediately preceding such fifteenth (15th) day.
4. A definition of "Eligible Investments" is hereby added to Section 1 to
immediately follow the definition of "Eligible Account," to read as
follows:
"Eligible Investments": Any one or more of the obligations and
securities listed below which investment provides for a date of
maturity not later than the Determination Date in each month:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of
America or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and
credit of the United States of America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in, certificates
of deposits of, or bankers' acceptances issued by, any depository
institution or trust company (including U.S. subsidiaries of foreign
depositories and the Trustee or any agent of the Trustee, acting in
its respective commercial capacity) incorporated or organized under
the laws of the United States of America or any state thereof and
subject to supervision and examination by federal or state banking
authorities, so long as at the time of investment or the contractual
commitment providing for such investment the commercial paper or other
short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution or trust company
which is the principal subsidiary of a holding company, the commercial
paper or other short-term debt or deposit obligations of such holding
company or deposit institution, as the case may be) have been rated by
each Rating Agency in its highest short-term rating category or one of
its two highest long-term rating categories;
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(iii) repurchase agreements collateralized by Direct Obligations
or securities guaranteed by Xxxxxx Mae, FNMA or FHLMC with any
registered broker/dealer subject to Securities Investors' Protection
Corporation jurisdiction or any commercial bank insured by the FDIC,
if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States of
America or any state thereof which have a credit rating from each
Rating Agency, at the time of investment or the contractual commitment
providing for such investment, at least equal to one of the two
highest long-term credit rating categories of each Rating Agency;
provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the sum of the aggregate principal balance of
the Mortgage Loans; provided, further, that such securities will not
be Eligible Investments if they are published as being under review
with negative implications from any Rating Agency;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 180 days after the date of
issuance thereof) rated by each Rating Agency in its highest
short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of
the United States of America or its agencies or instrumentalities
(which obligations are backed by the full faith and credit of the
United States of America) held by a custodian in safekeeping on behalf
of the holders of such receipts; and
(viii) any other demand, money market, common trust fund or time
deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating
Agency or (B) that would not adversely affect the then current rating
by each Rating Agency of any of the Certificates. Such investments in
this subsection (viii) may include money market mutual funds or common
trust funds, including any fund for which the Trustee, the Master
Servicer or an affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, and/or custodian or
subcustodian, notwithstanding that (x) the Trustee, the Master
Servicer or an affiliate thereof charges and collects fees and
expenses from such funds for services rendered, (y) the Trustee, the
Master Servicer or an affiliate thereof charges and collects fees and
expenses for services rendered pursuant to this Agreement, and (z)
services performed for such funds and pursuant to this Agreement may
converge at any time; provided, however, that no such instrument shall
be an Eligible Investment if such instrument evidences either (i) a
right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and
interest payments derived from obligations underlying such instrument
and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the
yield to maturity at par of such underlying obligations.
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5. A definition of "Xxxxxx Xxx" is hereby added to Section 1 to immediately
follow the definition of "FNMA Guides," to read as follows:
"Xxxxxx Mae": The Government National Mortgage Association, or any
successor thereto.
6. The definition of "Monthly Advance" in Section 1 is hereby amended in its
entirety to read as follows:
"Monthly Advance": With respect to each Remittance Date and each
Mortgage Loan, an amount equal to the Monthly Payment (with the
interest portion of such Monthly Payment adjusted to the Mortgage Loan
Remittance Rate) that was due on the Mortgage Loan on the Due Date in
the related Due Period, and that (i) was delinquent at the close of
business on the related Determination Date and (ii) was not the
subject of a previous Monthly Advance, but only to the extent that
such amount is expected, in the reasonable judgment of the Servicer,
to be recoverable from collections or other recoveries in respect of
such Mortgage Loan.
7. The definition of "Mortgage Loan" in Section 1 is hereby amended in its
entirety to read as follows:
"Mortgage Loan": An individual servicing retained Mortgage Loan which
has been purchased from the Servicer by Xxxxxx Brothers Bank, FSB and
assigned to Xxxxxx Brothers Holdings Inc. and is subject to this
Agreement, being identified on the Mortgage Loan Schedule attached to
this Agreement, which Mortgage Loan includes without limitation the
Mortgage Loan Documents, the Monthly Reports, Principal Prepayments,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan.
8. A definition of "Mortgage Loan Remittance Rate" is hereby added to Section
1 to immediately follow the definition of "Mortgage Loan Package," to read
as follows:
"Mortgage Loan Remittance Rate": With respect to each Mortgage Loan,
the annual rate of interest remitted to the Master Servicer, which
shall be equal to the Mortgage Interest Rate minus the applicable
Servicing Fee.
9. The definition of "Mortgage Loan Schedule" is hereby amended and restated
in its entirety to read as follows:
"Mortgage Loan Schedule": The schedule of Mortgage Loans attached as
Exhibit D to this Agreement setting forth certain information with
respect to the Mortgage Loans purchased from the Servicer by Xxxxxx
Brothers Bank, FSB pursuant to the Servicing Agreement.
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10. The definition of "Opinion of Counsel" in Section 1 is hereby amended by
adding the following proviso at the end of such definition:
provided that any Opinion of Counsel relating to (a) qualification of
the Mortgage Loans in a REMIC or (b) compliance with the REMIC
Provisions, must be an opinion of counsel who (i) is in fact
independent of the Servicer and the Master Servicer of the Mortgage
Loans, (ii) does not have any material direct or indirect financial
interest in the Servicer or the Master Servicer of the Mortgage Loans
or in an affiliate of either and (iii) is not connected with the
Servicer or the Master Servicer of the Mortgage Loans as an officer,
employee, director or person performing similar functions.
11. A new definition of "Prepayment Interest Shortfall Amount" is hereby added
to Section 1 to immediately follow the definition of "Preliminary Servicing
Period," to read as follows:
"Prepayment Interest Shortfall Amount": With respect to any Mortgage
Loan that was subject to a voluntary (not including discounted
payoffs) 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 of 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;
provided, however, that the Servicer's aggregate obligations to pay
the Prepayment Interest Shortfall Amount for any month shall be
limited to the total amount of Servicing Fees actually received with
respect to the Mortgage Loans by the Servicer during such month.
12. The definition of "Principal Prepayment" is hereby amended and restated in
its entirety to read as follows:
"Principal Prepayment": Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due
Date, including any prepayment charge or premium thereon and which is
not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to
the month of prepayment.
13. A new definition of "Principal Prepayment Period" is hereby added to
Section 1 to immediately follow the definition of "Principal Prepayment,"
to read as follows:
"Principal Prepayment Period": The month preceding the month in which
the related Remittance Date occurs.
14. A definition of "Qualified Depository" is hereby added to Section 1 to
immediately follow the definition of "Purchase Price," to read as follows:
"Qualified Depository": Any of (i) a federal or state-chartered
depository institution the accounts of which are insured by the FDIC
and whose commercial paper, short-term debt obligations or other
short-term deposits are rated at least "A-1+" by Standard & Poor's if
the deposits are to be held in the account for less than 30 days, or
whose long-term unsecured debt obligations are rated at least "AA-" by
Standard & Poor's if the deposits are to be held in the account for
more than 30 days, but no more than 365 days or (ii) the corporate
trust department of a federal or state-chartered depository
institution subject to regulations regarding fiduciary funds on
deposit similar to Title 12 of the Code of Federal Regulations Section
9.10(b), which, in either case, has corporate trust powers, acting in
its fiduciary capacity, or (iii) Xxxxxx Brothers Bank, FSB, a federal
savings bank.
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15. A new definition of "Qualified GIC" is hereby added to Section 1 to
immediately follow the definition of "Qualified Depository", to read as
follows:
"Qualified GIC": A guaranteed investment contract or surety bond
providing for the investment of funds in the Custodial Account and
insuring a minimum, fixed or floating rate of return on investments of
such funds, which contract or surety bond shall:
(a) be an obligation of an insurance company or other corporation
whose long-term debt is rated by each Rating Agency in one of its two
highest rating categories or, if such insurance company has no
long-term debt, whose claims paying ability is rated by each Rating
Agency in one of its two highest rating categories, and whose
short-term debt is rated by each Rating Agency in its highest rating
category;
(b) provide that the Servicer may exercise all of the rights
under such contract or surety bond without the necessity of taking any
action by any other Person;
(c) provide that if at any time the then current credit standing
of the obligor under such guaranteed investment contract is such that
continued investment pursuant to such contract of funds would result
in a downgrading of any rating of the Servicer, the Servicer shall
terminate such contract without penalty and be entitled to the return
of all funds previously invested thereunder, together with accrued
interest thereon at the interest rate provided under such contract to
the date of delivery of such funds to the Trustee;
(d) provide that the Servicer's interest therein shall be
transferable to any successor servicer or the Master Servicer
hereunder; and
(e) provide that the funds reinvested thereunder and accrued
interest thereon be returnable to the Custodial Account, as the case
may be, not later than the Business Day prior to any Determination
Date.
16. A new definition of "Rating Agency" is hereby added to Section 1 to
immediately follow the definition of "Rate/Term Refinancing", to read as
follows:
"Rating Agency": Xxxxx'x Investors Service, Inc., Fitch, Inc. or
Standard & Poor's, a division of the XxXxxx-Xxxx Companies, Inc., or
any successor of the foregoing.
17. A new definition of "Remittance Date" is hereby added to Section 1 to
immediately follow the definition of "REMIC Provisions," to read as
follows:
"Remittance Date": The 18th day (or if such 18th day is not a Business
Day, the first Business Day immediately following) of any month.
18. A new definition of "Sarbanes Certifying Party" is added to Section 1 to
immediately follow the definition of "Residential Dwelling" to read as
follows:
"Sarbanes Certifying Party" means a Person who provides a
certification required under the Xxxxxxxx-Xxxxx Act of 2002 on behalf
of the Trust Fund.
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19. The definition of "Servicing Fee" in Section 1 is hereby amended in its
entirety to read as follows:
"Servicing Fee:" With respect to each Mortgage Loan and for each
month, an amount equal to one-twelfth the product of (a) the Servicing
Fee Rate and (b) the outstanding principal balance of the Mortgage
Loan. The Servicing Fee is payable solely from the interest portion
(including recoveries with respect to interest from Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition
Proceeds to the extent permitted by Subsection 11.05 of the Servicing
Addendum to the Servicing Agreement) of such Monthly Payment collected
by the Servicer or as otherwise provided under this Agreement.
20. The definition of "Servicing Fee Rate" in Section 1 is hereby amended in
its entirety to read as follows:
"Servicing Fee Rate": 0.250% per annum.
21. The parties hereto acknowledge that Section 6 (Conveyance from Seller to
Initial Purchaser) of the Servicing Agreement shall be (i) superseded by
the provisions of the Custodial Agreement, and (ii) modified to indicate
that the Servicer shall prepare and execute at the direction of Xxxxxx
Brothers Holdings Inc. any note endorsements in connection with the
transfer of the Mortgage Loans to the Trust Fund as the Owner of the
Mortgage Loans and that Xxxxxx Brothers Holdings Inc. shall pay for any
fees associated with the preparation and execution of such note
endorsements to the Trust Fund.
22. Subsection 11.01 of the Servicing Addendum (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 Servicer 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 Servicer's reasonable and prudent determination
such waiver, modification, postponement or indulgence is not
materially adverse to the Master Servicer, the Trustee or the Trust;
provided, however, that unless the Mortgagor is in default with
respect to the Mortgage Loan or such default is, in the judgment of
the Servicer, imminent, the Servicer 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 this Agreement, the Servicer
shall not make or permit any modification, waiver or amendment of any
term of any Mortgage Loan that would cause any REMIC created under the
Trust Agreement to fail to qualify as a REMIC or result in the
imposition of any tax under Section 860F(a) or Section 860G(d) of the
Code.
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23. Subsection 11.04 of the Servicing Addendum (Establishment of Custodial
Accounts; Deposits in Custodial Accounts) is hereby amended as follows:
(i) by replacing the period at the end of the first sentence of such
Subsection and adding the following:
, titled "HSBC Mortgage Corporation (USA) in trust for the SARM
2005-23 Trust Fund". Each Custodial Account shall be held by a
Qualified Depository and any such investments therein shall be
Eligible Investments.
(ii) by adding the words "and in part" after the word "full" in the
first sentence of Clause (xi)
24. Subsection 11.05 of the Servicing Addendum (Permitted Withdrawals From the
Custodial Account) is hereby amended by replacing the references to
"Purchaser" in such subsection with "Trust Fund" and replacing the word
"and" at the end of such clause (vii) with the following:
provided however, that in the event that the Servicer determines in
good faith that any unreimbursed Monthly Advances will not be
recoverable from amounts representing late recoveries of payments of
principal or interest respecting the particular Mortgage Loan as to
which such Monthly Advance was made or from Liquidation Proceeds or
Insurance Proceeds with respect to such Mortgage Loan, the Servicer
may reimburse itself for such amounts from the Custodial Account, it
being understood, in the case of any such reimbursement, that the
Servicer's right thereto shall be prior to the rights of the Trust
Fund;
such subsection is further amended by replacing the periods at the end of
clauses (viii) and (ix) with semicolons and by adding the following new clauses
(x) and (xi):
(x) to invest funds in the Custodial Account in Eligible
Investments in accordance with Subsection 11.04; and
(xi) to transfer funds to another Qualified Depository in
accordance with Subsection 11.09 hereof.
25. Subsection 11.06 of the Servicing Addendum (Establishment of Escrow
Accounts; Deposits in Escrow Accounts) is hereby amended by replacing the
period at the end of the first sentence of such Subsection and adding the
following:
, titled "HSBC Mortgage Corporation (USA) in trust for the SARM
2005-23 Trust Fund". Each Custodial Account shall be held by a
Qualified Depository and any such investments therein shall be
Eligible Investments.
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26. Subsection 11.08 of the Servicing Addendum (Payment of Taxes, Insurance and
Other Charges; Maintenance of Primary Insurance Policies and LPMI Policies;
Collections Thereunder) is hereby amended by adding the following paragraph
at the end of such subsection:
The Servicer will notify the Master Servicer or Xxxxxx Brothers
Holdings in the event that the LPMI Policy is terminated.
27. Subsection 11.13 of the Servicing Addendum (Title, Management and
Disposition of REO Property) is hereby amended by (i) replacing the
reference to "two years" in the penultimate sentence of the second
paragraph thereof with "three years"; (ii) adding two new paragraphs after
the fourth paragraph thereof to read as follows:
In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage Loan, the
Servicer shall dispose of such REO Property not later than the end of
the third taxable year after the year of its acquisition by the Trust
Fund unless the Servicer has applied for and received a grant of
extension from the Internal Revenue Service to the effect that, under
the REMIC Provisions and any relevant proposed legislation and under
applicable state law, the applicable Trust REMIC may hold REO Property
for a longer period without adversely affecting the REMIC status of
such REMIC or causing the imposition of a federal or state tax upon
such REMIC. If the Servicer has received such an extension (and
provided a copy of the same to the Trustee and the Master Servicer),
then the Servicer shall continue to attempt to sell the REO Property
for its fair market value for such period longer than three years as
such extension permits (the "Extended Period"). If the Servicer has
not received such an extension and the Servicer is unable to sell the
REO Property within the period ending 3 months before the end of such
third taxable year after its acquisition by the Trust Fund or if the
Servicer has received such an extension, and the Servicer is unable to
sell the REO Property within the period ending three months before the
close of the Extended Period, the Servicer shall, before the end of
the three year period or the Extended Period, as applicable, (i)
purchase such REO Property at a price equal to the REO Property's fair
market value or (ii) auction the REO Property to the highest bidder
(which may be the Servicer) in an auction reasonably designed to
produce a fair price prior to the expiration of the three-year period
or the Extended Period, as the case may be. The Trustee shall sign any
document or take any other action reasonably requested by the Servicer
which would enable the Servicer, on behalf of the Trust Fund, to
request such grant of extension.
Notwithstanding any other provisions of this Agreement, no REO
Property acquired by the Trust Fund shall be rented (or allowed to
continue to be rented) or otherwise used or held by or on behalf of
the Trust Fund in such a manner, pursuant to any terms or for a period
that would: (i) cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the
Code or (ii) subject any Trust REMIC to the imposition of any federal
income taxes on the income earned from such REO Property, including
any taxes imposed by reason of Sections 860F or 860G(c) of the Code,
unless the Servicer has agreed to indemnify and hold harmless the
Trust Fund with respect to the imposition of any such taxes; and
and (iii) by adding the following to the end of such Subsection:
Prior to acceptance by the Servicer of an offer to sell any REO
Property, the Servicer shall notify the Master Servicer of such offer
in writing which notification shall set forth all material terms of
said offer (each a "Notice of Sale"). The Master Servicer shall be
deemed to have approved the sale of any REO Property unless the Master
Servicer notifies the Servicer in writing, within five (5) calendar
days after its receipt of the related Notice of Sale, that it
disapproves of the related sale, in which case the Servicer shall not
proceed with such sale.
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28. Subsection 11.14 of the Servicing Addendum (Distributions) is hereby
amended by replacing the word "second" in the first sentence of the third
paragraph with "first" and by adding the following after the second
paragraph of such Subsection:
All distributions required to be made to the Master Servicer
shall be made to the following wire account or to such other account
as may be specified by the Master Servicer from time to time:
JPMorgan Chase Bank, N.A.
New York, New York
ABA #: 000-000-000
Account Name: Aurora Loan Services LLC
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services LLC
For further credit to: Aurora Loan Services, SARM 2005-23
29. Subsection 11.16 of the Servicing Addendum (Statements to Purchaser) is
hereby amended by replacing the last paragraph of such Subsection 11.16 in
its entirety with the following paragraphs:
Beginning with calendar year 2006, the Seller shall prepare and
file any and all tax returns, information statements or other filings
for the portion of the tax year 2005 and the portion of subsequent tax
years for which the Seller has serviced some or all of the Mortgage
Loans hereunder as such returns, information statements or other
filings are required to be delivered to any governmental taxing
authority or to the Master Servicer pursuant to any applicable law
with respect to the Mortgage Loans and the transactions contemplated
hereby. In addition, the Seller shall provide the Master Servicer with
such information concerning the Mortgage Loans as is necessary for the
Master Servicer to prepare the Trust Fund's federal income tax return
as the Master Servicer may reasonably request from time to time.
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 Subsections 11.04 and 11.06 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
E-1 and Exhibit E-2 shall consist of that which is reasonably
available to the Servicer as mutually agreed to by the Servicer and
the Master Servicer. A data file containing information in Exhibit E-1
will be sent to a secured website approved by the Servicer for
retrieval by the Purchaser.
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The monthly statement shall include (a) with respect to those
Mortgage Loans covered by any PMI Policy, on a current and cumulative
basis the amount of any (i) claims filed, (ii) claims payments made,
(iii) claims denied, (iv) policies cancelled and (v) all such other
information reasonably required by the Master Servicer and (b) the
amount of any Monthly Advances made by the Servicer on such Monthly
Remittance Date.
The Master Servicer may request that the Servicer provide, at the
Master Servicer's expense, an appraisal or a broker price opinion on
any Mortgage Loan which is 90 days or more delinquent. The Servicer
shall promptly, and in no event later than 15 calendar days after such
request, deliver such appraisal or broker price opinion to the Master
Servicer.
30. Subsection 11.23 of the Servicing Addendum (Statement as to Compliance) is
hereby amended and restated in its entirety to read as follows:
Subsection 11.23 Annual Officer's Certificate.
(a) Not later than the earlier of (a) March 15 of each calendar year
(other than the calendar year during which the Closing Date occurs) or
(b) with respect to any calendar year during which the Depositor's
annual report on Form 10-K is required to be filed in accordance with
the Securities Exchange Act of 1934, as amended (the "Exchange Act")
and the rules and regulations of the Securities and Exchange
Commission (the "Commission"), 15 calendar days before the date on
which the Depositor's annual report on Form 10-K is required to be
filed in accordance with the Exchange Act and the rules and
regulations of the Commission (or, in each case, if such day is not a
Business Day, the immediately preceding Business Day), the Servicer,
at its own expense, will deliver to Xxxxxx Brothers Holdings Inc., the
Master Servicer and the Sarbanes Certifying Party a Servicing
Officer's certificate stating, as to each signer thereof, that (i) a
review of the activities of the Servicer during such preceding fiscal
year and of performance under this Agreement has been made under such
officers' supervision, and (ii) to the best of such officers'
knowledge, based on such review, the Servicer has fulfilled all its
obligations under this Agreement for such year, or, if there has been
a default in the fulfillment of all such obligations, specifying each
such default known to such officer and the nature and status thereof
including the steps being taken by the Servicer to remedy such
default.
(b) For so long as a certificate under the Xxxxxxxx-Xxxxx Act of 2002,
as amended, ("Xxxxxxxx-Xxxxx") is required to be given on behalf of
the Trust Fund, not later than the earlier of (i) March 15 of each
calendar year (other than the calendar year during which the Closing
Date occurs) or (ii) with respect to any calendar year during which
the Depositor's annual report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations of the
Commission, 15 calendar days before the date on which the Depositor's
annual report on Form 10-K is required to be filed in accordance with
the Exchange Act and the rules and regulations of the Commission (or,
in each case, if such day is not a Business Day, the immediately
preceding Business Day), or at any other time that the Sarbanes
Certifying Party provides a certification pursuant to Xxxxxxxx-Xxxxx
and upon thirty (30) days written request of such parties, an officer
of the Servicer shall execute and deliver an Officer's Certificate to
the Sarbanes Certifying Party for the benefit of the Trust Fund and
the Sarbanes Certifying Party and its officers, directors and
affiliates, in the form of Exhibit F hereto.
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31. Subsection 11.24 of the Servicing Addendum (Independent Public Accountants'
Servicing Report) is hereby amended and restated in its entirety to read as
follows:
Subsection 11.24 Annual Audit Report.
Not later than the earlier of (i) March 15 of each calendar year
(other than the calendar year during which the Closing Date occurs) or
(ii) with respect to any calendar year during which the Depositor's
annual report on Form 10-K is required to be filed in accordance with
the Exchange Act and the rules and regulations of the Commission, 15
calendar days before the date on which the Depositor's annual report
on Form 10-K is required to be filed in accordance with the Exchange
Act and the rules and regulations of the Commission (or, in each case,
if such day is not a Business Day, the immediately preceding Business
Day), the Servicer shall, at its own expense, cause a firm of
independent public accountants (who may also render other services to
Servicer), which is a member of the American Institute of Certified
Public Accountants, to furnish to Xxxxxx Brothers Holdings Inc.,
Master Servicer and the Sarbanes Certifying Party (i) year-end audited
(if available) financial statements of the Servicer and (ii) a
statement to the effect that such firm has examined certain documents
and records for the preceding fiscal year (or during the period from
the date of commencement of such Servicer's duties hereunder until the
end of such preceding fiscal year in the case of the first such
certificate) and that, on the basis of such examination conducted
substantially in compliance with the Uniform Single Attestation
Program for Mortgage Bankers, such firm is of the opinion that
Servicer's overall servicing operations have been conducted in
compliance with the Uniform Single Attestation Program for Mortgage
Bankers except for such exceptions that, in the opinion of such firm,
the Uniform Single Attestation Program for Mortgage Bankers requires
it to report, in which case such exceptions shall be set forth in such
statement.
32. Subsection 11.29 of the Servicing Addendum (Monthly Advances by the Seller)
is hereby amended and restated in its entirety to read as follows:
Subsection 11.29 Monthly Advances by the Servicer.
On the Business Day immediately preceding each Remittance Date, the
Servicer shall deposit in the Custodial Account from its own funds an
amount equal to all Monthly Payments (with interest adjusted to the
Mortgage Loan Remittance Rate) which were due on the Mortgage Loans
during the applicable Due Period and which were delinquent at the
close of business on the immediately preceding Determination Date or
which were deferred pursuant to Section 3.01. The Servicer's
obligation to make such Monthly Advances as to any Mortgage Loan will
continue through the last Monthly Payment due prior to the payment in
full of the Mortgage Loan, or through the last Remittance Date prior
to the Remittance Date for the distribution of all Liquidation
Proceeds and other payments or recoveries (including Insurance
Proceeds and Condemnation Proceeds) with respect to the Mortgage Loan
unless the Servicer deems such Monthly Advances to be unrecoverable,
as evidenced by an Officer's Certificate of the Servicer delivered to
the Owner.
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33. A new Subsection 11.30 to the Servicing Addendum (Recordation of
Assignments of Mortgage) is hereby added to this Agreement to read as
follows:
At the expense of Depositor, the Servicer shall (i) prepare an
Assignment of Mortgage in favor of the Trustee as to each Non-MERS
Mortgage Loan, and (ii) as soon as practicable after the Closing Date
(but in no event more than 90 days thereafter except to the extent
delays are caused by the applicable recording office) cause to be
properly recorded in each public recording office where such Non-MERS
Eligible Mortgage Loans are recorded each Assignment of Mortgage.
34. A new Subsection 11.31 to the Servicing Addendum (Reporting Requirements of
the Commission and Indemnification) is hereby added to this Agreement to
read as follows:
Subsection 11.31 Reporting Requirements of the Commission and
Indemnification
Notwithstanding any other provision of this Agreement, the Servicer
shall (i) agree to such modifications and enter into such amendments
to this Agreement as may be necessary, in the judgment of the
Depositor, the Master Servicer and their respective counsel, to comply
with any rules promulgated by the Commission and any interpretations
thereof by the staff of the Commission (collectively, "SEC Rules")
provided that the Servicer is reasonably able to comply with such
revised rules and (ii) upon request within reasonable timeframes
intended to comply with the SEC Rules provide to the Depositor for
inclusion in any periodic report required to be filed under the
Exchange Act, such items of information regarding this Agreement and
matters related to the Servicer, including as applicable (by way of
example and not limitation), a description of any material litigation
or governmental action or proceeding involving the Servicer or its
affiliates (collectively, the "Servicer Information"), provided, that
such information shall be required to be provided by the Servicer only
to the extent that such shall be determined by the Depositor in its
sole discretion and its counsel to be necessary or advisable to comply
with any SEC Rules. Xxxxxx Brothers Bank, FSB agrees to cooperate in
good faith with the Servicer to negotiate the reimbursement of any
material out-of-pocket fees or expenses incurred by the Servicer as a
result of complying with the SEC Rules.
The Servicer hereby agrees to indemnify and hold harmless the
Depositor, the Master Servicer, their respective officers and
directors and each person, if any, who controls the Depositor or
Master Servicer within the meaning of Section 15 of the Securities Act
of 1933, as amended (the "Securities Act"), or Section 20 of the
Exchange Act, from and against any and all losses, claims, expenses,
damages or liabilities to which the Depositor, the Master Servicer,
their respective officers or directors and any such controlling person
may become subject under the Securities Act or otherwise, as and when
such losses, claims, expenses, damages or liabilities are incurred,
insofar as such losses, claims, expenses, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained
in the Servicer Information or arise out of, or are based upon, the
omission or alleged omission to state therein any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and will reimburse the Depositor, the Master Servicer,
their respective officers and directors and any such controlling
person for any legal or other expenses reasonably incurred by it or
any of them in connection with investigating or defending any such
loss, claim, expense, damage, liability or action, as and when
incurred; provided, however, that the Servicer shall be liable only
insofar as such untrue statement or alleged untrue statement or
omission or alleged omission relates solely to the information in the
Servicer Information furnished to the Depositor or Master Servicer by
or on behalf of the Servicer specifically in connection with this
Agreement.
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35. Four new paragraphs are hereby added at the end of Subsection 7.01
(Representations and Warranties Respecting the Seller) to read as follows:
It is understood and agreed that the representations and
warranties set forth in Subsection 7.01 (i) through (vi) and (ix)
through (xiv) are hereby restated as of the Closing Date and shall
survive the engagement of the Servicer to perform the servicing
responsibilities hereunder and the delivery of the Servicing Files to
the Servicer and shall inure to the benefit of the Trustee, the Trust
Fund and the Master Servicer. Upon discovery by either the Servicer,
the Master Servicer or the Trustee of a breach of any of the foregoing
representations and warranties which materially and adversely affects
the ability of the Servicer to perform its duties and obligations
under this Agreement or otherwise materially and adversely affects the
value of the Mortgage Loans, the Mortgaged Property or the priority of
the security interest on such Mortgaged Property or the interest of
the Trustee or the Trust Fund, the party discovering such breach shall
give prompt written notice to the other.
Within 60 days of the earlier of either discovery by or notice to
the Servicer of any breach of a representation or warranty set forth
in Subsection 7.01 which materially and adversely affects the ability
of the Servicer to perform its duties and obligations under this
Agreement or otherwise materially and adversely affects the value of
the Loans, the Mortgaged Property or the priority of the security
interest on such Mortgaged Property, the Servicer shall use its Best
Efforts promptly to cure such breach in all material respects and, if
such breach cannot be cured, the Servicer shall, at the Master
Servicer's option, assign the Servicer's rights and obligations under
this Agreement (or respecting the affected Mortgage Loans) to a
successor servicer selected by the Master Servicer with the prior
consent and approval of the Trustee. Such assignment shall be made in
accordance with Section 16.
In addition, the Servicer shall indemnify (from its own funds)
the Trustee, the Trust Fund and Master Servicer and hold each of them
harmless against any costs resulting from any claim, demand, defense
or assertion based on or grounded upon, or resulting from, a breach of
the Servicer's representations and warranties contained in this
Agreement. It is understood and agreed that the remedies set forth in
this Subsection 7.01 constitute the sole remedies of the Master
Servicer, the Trust Fund and the Trustee respecting a breach of the
foregoing representations and warranties.
Any cause of action against the Servicer relating to or arising
out of the breach of any representations and warranties made in
Subsection 7.01 shall accrue upon (i) discovery of such breach by the
Servicer or notice thereof by the Trustee or Master Servicer to the
Servicer, (ii) failure by the Servicer to cure such breach within the
applicable cure period, and (iii) demand upon the Servicer by the
Trustee or the Master Servicer for compliance with this Agreement.
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36. Sections 13.01 (Additional Indemnification by the Seller) and 13.03
(Limitation on Liability of the Seller and Others) are replaced by the
following:
The Servicer shall indemnify Xxxxxx Brothers Holdings, Inc., the
Trust Fund, the Depositor, the Trustee and the Master Servicer 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 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
(including, but not limited to its obligation to provide the
certifications pursuant to Section 11.23 hereunder) or for any
inaccurate or misleading information provided in the certification
required pursuant to Section 11.23. The Servicer immediately shall
notify Xxxxxx Brothers Holdings Inc., the Depositor, the Master
Servicer and the Trustee or any other relevant party 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
Trustee in connection with such claim. 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 when the
claim is in any way related to the Servicer's indemnification pursuant
to Subsection 7.03, or the failure of the Servicer to service and
administer the Mortgage Loans in strict compliance with the terms of
this Agreement.
The Trust Fund shall 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 the failure of the Trustee or the
Master Servicer to perform its duties in compliance with the terms of
this Agreement.
Neither the Servicer nor any of the directors, officers,
employees or agents of the Servicer shall be under any liability to
Xxxxxx Brothers Holdings Inc., the Trust Fund, the Depositor, the
Trustee or the Master Servicer for any action taken or for refraining
from the taking of any action in good faith pursuant to this Agreement
and at the written instruction of Xxxxxx Brothers Holdings Inc. or the
Master Servicer, or for errors in judgment, provided, however, that
this provisions shall not protect the Servicer or any such person
against any breach of warranties or representations made herein, or
failure to perform its obligation in strict compliance with any
standard of care set forth in this Agreement, or any liability which
would otherwise be imposed by reason of any breach of the terms and
conditions of this Agreement.
In the event a dispute arises between an indemnified party and
the Servicer with respect to any of the rights and obligations of the
parties pursuant to this Agreement and such dispute is adjudicated in
a court of law, by an arbitration panel or any other judicial process,
then the losing party shall indemnify and reimburse the winning party
for all attorney's fees and other costs and expenses related to the
adjudication of said dispute.
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37. Section 13.04 (Seller Not to Resign) is hereby amended and restated in its
entirety to read as follows:
Subsection 13.04 Limitation on Resignation and Assignment by Servicer
The Servicer shall neither assign this Agreement or the servicing
hereunder or delegate its rights or duties hereunder or any portion
hereof (to other than a third party in the case of outsourcing routine
tasks such as taxes, insurance and property inspection, in which case
the Servicer shall be fully liable for such tasks as if the Servicer
performed them itself) or sell or otherwise dispose of all or
substantially all of its property or assets without the prior written
consent of the Trustee and the Master Servicer, which consent shall be
granted or withheld in the reasonable discretion of such parties; or
upon the determination that the Servicer's duties hereunder are no
longer permissible under applicable law and such incapacity cannot be
cured by the Servicer. Any such determination permitting the
unilateral resignation of the Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered by the Servicer, which
opinion shall be in form and substance acceptable to the Trustee and
the Master Servicer. No such resignation or assignment shall become
effective until a successor has assumed the Servicer's
responsibilities and obligations hereunder in accordance with Section
16. Notwithstanding the foregoing, the Servicer may assign its rights
and obligations hereunder without prior written consent of the Trustee
and the Master Servicer to any entity that is directly owned or
controlled by the Servicer, and the Servicer guarantees the
performance of such entity hereunder. In the event of such assignment
by the Servicer, the Servicer shall provide the Trustee and the Master
Servicer with a written statement guaranteeing the successor entity's
performance of the Servicer's obligations under the Agreement.
38. Subsection 14.01 (Events of Default) is hereby amended by:
(a) changing any reference to "Purchaser" to "Master Servicer";
and
(b) amending subclause (vii) as follows: "the Servicer at any
time is neither a FNMA or FHLMC approved servicer, and the Master
Servicer has not terminated the rights and obligations of the Servicer
under this Agreement and replaced the Servicer with a FNMA or FHLMC
approved servicer within 30 days of the absence of such approval; or".
39. Subsection 14.02 (Waiver of Defaults) is hereby amended by changing the
reference to "Purchaser" to "Master Servicer".
40. Section 15 (Termination) is hereby amended by replacing all references to
"Purchaser" with "Trustee" and by adding the following paragraph to the end
of such subsection:
At the time of any termination of the Servicer pursuant to this
Section 15, the Servicer shall be entitled to all accrued and unpaid
Servicing Fees and unreimbursed Servicing Advances and Monthly
Advances; provided, however, in the event of a termination for cause
under Section 14 hereof, such unreimbursed amounts shall not be
reimbursed to the Servicer until such amounts are received by the
Trust Fund from the related Mortgage Loans.
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41. Section 16 (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 pursuant to
Subsections 13.04 or 14.01 or Section 15, 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, and which
shall succeed to all rights and assume all of the responsibilities,
duties and liabilities of the Servicer under this Agreement with the
termination of the Servicer's responsibilities, duties and liabilities
under this Agreement. Any successor to the Servicer that is not at
that time a servicer of other mortgage loans for the Trust Fund shall
be subject to the approval of the Master Servicer, the Purchaser, 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
Purchaser, 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 16 and shall in no event relieve the Servicer of the
representations and warranties made pursuant to Sections 3.01 and the
remedies available to the Trust Fund under Section 7.03 shall be
applicable to the Servicer notwithstanding any such resignation or
termination of the Servicer, or the termination of this Agreement.
Within a reasonable period of time, but in no event longer than
30 days after 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, to the extent they are in not the possession of
the Custodian, 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 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 accepting such appointment, wherein the
successor shall make 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 Subsections 13.04 or 14.01 or Section 15 shall
not affect any claims that (i) the Master Servicer or the Trustee may
have against the Servicer arising out of the Servicer's actions or
failure to act, or (ii) the Servicer may have against the Trust Fund,
prior to any such termination or resignation.
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The Servicer shall deliver, within three (3) Business Days of the
appointment of a successor Servicer, the funds in the Custodial
Account and Escrow Account and all Collateral Files, Credit Files and
related documents and statements held by it hereunder to the successor
Servicer 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.
Upon a successor's acceptance of appointment as such, the
Servicer shall notify the Trustee and Master Servicer of such
appointment in accordance with the notice procedures set forth herein.
Except as otherwise provided in this Agreement, all reasonable
out-of-pocket costs and expenses incurred in connection with any
transfer of servicing hereunder (whether as a result of termination or
removal of the Servicer or resignation of the Servicer or otherwise),
including, without limitation, the out-of-pocket 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, removed or resigning Servicer from its own funds
without reimbursement. The Trust Fund shall be liable for all costs
and expenses incurred in connection with any transfer of servicing
hereunder, other than costs and expenses incurred in connection with a
transfer of servicing for cause as stated above.
42. A new Section 31 (Amendment) is hereby added to read as follows:
Section 31. Amendment
This Agreement may be amended from time to time by written agreement
by the Servicer and Xxxxxx Brothers Holdings Inc., with the written
consent of the Master Servicer and the Trustee.
43. A new Section 32 (Intended Third Party Beneficiaries) is hereby added to
read as follows:
Section 32. Intended Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary, the parties
to this Agreement agree that it is appropriate, in furtherance of the
intent of such parties as set forth herein, that the Master Servicer
and the Trustee receive the benefit of the provisions of this
Agreement as intended third party beneficiaries of this Agreement to
the extent of such provisions. The Servicer shall have the same
obligations to the Master Servicer and the Trustee as if they were
parties to this Agreement, and the Master Servicer and the Trustee
shall have the same rights and remedies to enforce the provisions of
this Agreement as if they were parties to this Agreement. The Servicer
shall only take direction from the Master Servicer (if direction by
the Master Servicer is required under this Agreement) unless otherwise
directed by this Agreement. Notwithstanding the foregoing, all rights
and obligations of the Master Servicer and the Trustee hereunder
(other than the right to indemnification) shall terminate upon
termination of the Trust Agreement and of the Trust Fund pursuant to
the Trust Agreement.
A-17
44. A new Section 33 (Acknowledgment) is hereby added to read as follows:
Section 33. Acknowledgment. The Seller hereby acknowledges that
the rights of Xxxxxx Brothers Bank, FSB under the Servicing Agreement,
as amended by this Agreement, will be assigned to SASCO under the
Mortgage Loan Sale and Assignment Agreement, and subsequently to the
Trust Fund under the Trust Agreement and agrees that the Mortgage Loan
Sale and Assignment Agreement and the Trust Agreement will constitute
an assignment and assumption of the rights of Xxxxxx Brothers Bank,
FSB under the Servicing Agreement to SASCO and the Trust Fund, as
applicable. In addition, the Trust Fund will make a REMIC election.
The Seller hereby consents to such assignment and assumption and
acknowledges the Trust Fund's REMIC election.
45. A new Section 34 is hereby added to read as follows:
Section 34. Amendment. This Agreement may be amended from time to
time by written agreement signed by the Servicer and the Purchaser,
with the written consent of the Master Servicer and the Trustee.
A-18
EXHIBIT B
Servicing Agreement
(See Exhibit 99.8)
B-1
EXHIBIT C
Assignment and Assumption Agreement
[INTENTIONALLY OMITTED]
C-1
EXHIBIT D
Mortgage Loan Schedule
On File at the offices of:
Dechert LLP
Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
T-215-994-2777
F-215-994-2222
D-1
EXHIBIT E-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
Example .0675000 for 6.75%
PIPMT P&I CONSTANT, REQUIRED Number two decimals
.00 IF PAIDOFF
E-1-1
EXHIBIT E-2
STANDARD LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
FIELD NAME DESCRIPTION
---------- -----------
------------------------------------------------------------------------------------------------------------------------------------
DATA FIELD FORMAT DATA DESCRIPTION
------------------------------------------------------------------------------------------------------------------------------------
% of MI coverage NUMBER(6,5) The percent of coverage provided by the PMI
company in the event of loss on a defaulted
loan.
------------------------------------------------------------------------------------------------------------------------------------
Actual MI claim DATE(MM/DD/YYYY) Actual date that the claim was submitted to
filed date the PMI company.
------------------------------------------------------------------------------------------------------------------------------------
Actual bankruptcy DATE(MM/DD/YYYY) Actual date that the bankruptcy petition is
start date filed with the court.
------------------------------------------------------------------------------------------------------------------------------------
Actual MI claim NUMBER(15,2) The amount of the claim that was filed by
amount filed the servicer with the PMI company.
------------------------------------------------------------------------------------------------------------------------------------
Actual discharge DATE(MM/DD/YYYY) Actual date that the Discharge Order is
date entered in the bankruptcy docket.
------------------------------------------------------------------------------------------------------------------------------------
Actual due date DATE(MM/DD/YYYY) Actual due date of the next outstanding
payment amount due from the mortgagor.
------------------------------------------------------------------------------------------------------------------------------------
Actual eviction DATE(MM/DD/YYYY) Actual date that the eviction proceedings
complete date are completed by local counsel.
------------------------------------------------------------------------------------------------------------------------------------
Actual eviction DATE(MM/DD/YYYY) Actual date that the eviction proceedings
start date are commenced by local counsel.
------------------------------------------------------------------------------------------------------------------------------------
Actual first DATE(MM/DD/YYYY) Actual date that foreclosure counsel filed
legal date the first legal action as defined by state
statute.
------------------------------------------------------------------------------------------------------------------------------------
Actual redemption DATE(MM/DD/YYYY) Actual date that the foreclosure redemption
end date period expires.
------------------------------------------------------------------------------------------------------------------------------------
Bankruptcy VARCHAR2(2) 7=Chapter 7 filed 11=Chapter 11 filed Chapter of bankruptcy filed.
chapter 12=Chapter 12 filed 13=Chapter 13 filed
------------------------------------------------------------------------------------------------------------------------------------
Bankruptcy flag VARCHAR2(2) Y=Active Bankruptcy N=No Active Bankruptcy Servicer defined indicator that identifies
that the property is an asset in an active
bankruptcy case.
------------------------------------------------------------------------------------------------------------------------------------
Bankruptcy Case VARCHAR2(15) The court assigned case number of the
Number bankruptcy filed by a party with interest in
the property.
------------------------------------------------------------------------------------------------------------------------------------
E-2-1
------------------------------------------------------------------------------------------------------------------------------------
MI claim amount NUMBER(15,2) The amount paid to the servicer by the PMI
paid company as a result of submitting an MI
claim.
------------------------------------------------------------------------------------------------------------------------------------
MI claim funds DATE(MM/DD/YYYY) Actual date that funds were received from
received date the PMI company as a result of transmitting
an MI claim.
------------------------------------------------------------------------------------------------------------------------------------
Current loan NUMBER(10,2) Current unpaid principal balance of the loan
amount as of the date of reporting to Aurora Master
Servicing.
------------------------------------------------------------------------------------------------------------------------------------
Date FC sale DATE(MM/DD/YYYY) Date that the foreclosure sale is scheduled
scheduled to be held.
------------------------------------------------------------------------------------------------------------------------------------
Date relief/ DATE(MM/DD/YYYY) Actual date that the dismissal or relief
dismissal granted from stay order is entered by the bankruptcy
court.
------------------------------------------------------------------------------------------------------------------------------------
Date REO offer DATE(MM/DD/YYYY) Actual date of acceptance of an REO offer.
accepted
------------------------------------------------------------------------------------------------------------------------------------
Date REO offer DATE(MM/DD/YYYY) Actual date of receipt of an REO offer.
received
------------------------------------------------------------------------------------------------------------------------------------
Delinquency value NUMBER(10,2) Value obtained typically from a BPO prior to
foreclosure referral not related to loss
mitigation activity.
------------------------------------------------------------------------------------------------------------------------------------
Delinquency value VARCHAR2(15) BPO=Broker's Price Opinion Appraisal=Appraisal Name of vendor or management company that
source provided the delinquency valuation amount.
------------------------------------------------------------------------------------------------------------------------------------
Delinquency value DATE(MM/DD/YYYY) Date that the delinquency valuation amount
date was completed by vendor or property
management company.
------------------------------------------------------------------------------------------------------------------------------------
Delinquency flag VARCHAR2(2) Y=90+ delinq. Not in FC, Bky or Loss mit Servicer defined indicator that identifies
N=Less than 90 days delinquent that the loan is delinquent but is not
involved in loss mitigation, foreclosure,
bankruptcy or REO.
------------------------------------------------------------------------------------------------------------------------------------
Foreclosure flag VARCHAR2(2) Y=Active foreclosure N=No active foreclosure Servicer defined indicator that identifies
that the loan is involved in foreclosure
proceedings.
------------------------------------------------------------------------------------------------------------------------------------
Corporate expense NUMBER(10,2) Total of all cumulative expenses advanced by
balance the servicer for non-escrow expenses such as
but not limited to: FC fees and costs,
bankruptcy fees and costs, property
preservation and property inspections.
------------------------------------------------------------------------------------------------------------------------------------
E-2-2
------------------------------------------------------------------------------------------------------------------------------------
Foreclosure DATE(MM/DD/YYYY) Actual date that the loan was referred to
attorney referral local counsel to begin foreclosure
date proceedings.
------------------------------------------------------------------------------------------------------------------------------------
Foreclosure NUMBER(15,2) Value obtained during the foreclosure
valuation amount process. Usually as a result of a BPO and
typically used to calculate the bid.
------------------------------------------------------------------------------------------------------------------------------------
Foreclosure DATE(MM/DD/YYYY) Date that foreclosure valuation amount was
valuation date completed by vendor or property management
company.
------------------------------------------------------------------------------------------------------------------------------------
Foreclosure VARCHAR2(80) BPO=Broker's Price Opinion Appraisal=Appraisal Name of vendor or management company that
valuation source provided the foreclosure valuation amount.
------------------------------------------------------------------------------------------------------------------------------------
FHA 27011A DATE(MM/DD/YYYY) Actual date that the FHA 27011A claim was
transmitted date submitted to HUD.
------------------------------------------------------------------------------------------------------------------------------------
FHA 27011 B DATE(MM/DD/YYYY) Actual date that the FHA 27011B claim was
transmitted date submitted to HUD.
------------------------------------------------------------------------------------------------------------------------------------
VA LGC/ FHA Case VARCHAR2(15) Number that is assigned individually to the
number loan by either HUD or VA at the time of
origination. The number is located on the
Loan Guarantee Certificate (LGC) or the
Mortgage Insurance Certificate (MIC).
------------------------------------------------------------------------------------------------------------------------------------
FHA Part A funds DATE(MM/DD/YYYY) Actual date that funds were received from
received date HUD as a result of transmitting the 27011A
claim.
------------------------------------------------------------------------------------------------------------------------------------
Foreclosure DATE(MM/DD/YYYY) Actual date that the foreclosure sale was
actual sale date held.
------------------------------------------------------------------------------------------------------------------------------------
Servicer loan VARCHAR2(15) Individual number that uniquely identifies
number loan as defined by servicer.
------------------------------------------------------------------------------------------------------------------------------------
Loan type VARCHAR2(2) 1=FHA Residential 2=VA Residential Type of loan being serviced generally
3=Conventional w/o PMI 4=Commercial defined by the existence of certain types of
5=FHA Project 6=Conventional w/PMI insurance. (ie: FHA, VA, conventional
7=HUD 235/265 8=Daily Simple Interest Loan insured, conventional uninsured, SBA, etc.)
9=Farm Loan U=Unknown
S=Sub prime
------------------------------------------------------------------------------------------------------------------------------------
Loss mit approval DATE(MM/DD/YYYY) The date determined that the servicer and
date mortgagor agree to pursue a defined loss
mitigation alternative.
------------------------------------------------------------------------------------------------------------------------------------
E-2-3
------------------------------------------------------------------------------------------------------------------------------------
Loss mit flag VARCHAR2(2) Y=Active loss mitigation N=No active loss mitigation Servicer defined indicator that identifies
that the loan is involved in completing a
loss mitigation alternative.
------------------------------------------------------------------------------------------------------------------------------------
Loss mit removal DATE(MM/DD/YYYY) The date that the mortgagor is denied loss
date mitigation alternatives or the date that the
loss mitigation alternative is completed
resulting in a current or liquidated loan.
------------------------------------------------------------------------------------------------------------------------------------
Loss mit type VARCHAR2(2) L=Loss Mitigation LT=Litigation pending The defined loss mitigation alternative
NP=Pending non-performing sale CH=Charge off identified on the loss mit approval date.
DI=Deed in lieu FB=Forbearance plan
MO=Modification PC=Partial claim
SH=Short sale VA=VA refunding
------------------------------------------------------------------------------------------------------------------------------------
Loss mit value NUMBER(10,2) Value obtained typically from a BPO prior to
foreclosure sale intended to aid in the
completion of loss mitigation activity.
------------------------------------------------------------------------------------------------------------------------------------
Loss mit value DATE(MM/DD/YYYY) Name of vendor or management company that
date provided the loss mitigation valuation
amount.
------------------------------------------------------------------------------------------------------------------------------------
Loss mit value VARCHAR2(15) BPO=Broker's Price Opinion Appraisal=Appraisal Date that the loss mitigation valuation
source amount was completed by vendor or property
management company.
------------------------------------------------------------------------------------------------------------------------------------
MI certificate VARCHAR2(15) A number that is assigned individually to
number the loan by the PMI company at the time of
origination. Similar to the VA LGC/FHA Case
Number in purpose.
------------------------------------------------------------------------------------------------------------------------------------
LPMI Cost NUMBER(7,7) The current premium paid to the PMI company
for Lender Paid Mortgage Insurance.
------------------------------------------------------------------------------------------------------------------------------------
Occupancy status VARCHAR2(1) O=Owner occupied T=Tenant occupied The most recent status of the property
U=Unknown V=Vacant regarding who if anyone is occupying the
property. Typically a result of a routine
property inspection.
------------------------------------------------------------------------------------------------------------------------------------
First Vacancy DATE(MM/DD/YYYY) The date that the most recent occupancy
date/Occupancy status was determined. Typically the date
status date of the most recent property inspection.
------------------------------------------------------------------------------------------------------------------------------------
Original loan NUMBER(10,2) Amount of the contractual obligations (ie:
amount note and mortgage/deed of trust).
------------------------------------------------------------------------------------------------------------------------------------
E-2-4
------------------------------------------------------------------------------------------------------------------------------------
Original value NUMBER(10,2) Appraised value of property as of
amount origination typically determined through the
appraisal process.
------------------------------------------------------------------------------------------------------------------------------------
Origination date DATE(MM/DD/YYYY) Date that the contractual obligations (ie:
note and mortgage/deed of trust) of the
mortgagor was executed.
------------------------------------------------------------------------------------------------------------------------------------
FHA Part B funds DATE(MM/DD/YYYY) Actual date that funds were received from
received date HUD as a result of transmitting the 27011B
claim.
------------------------------------------------------------------------------------------------------------------------------------
Post petition due DATE(MM/DD/YYYY) The post petition due date of a loan
date involved in a chapter 13 bankruptcy.
------------------------------------------------------------------------------------------------------------------------------------
Property VARCHAR2(2) 1=Excellent 2=Good Physical condition of the property as most
condition 3=Average 4=Fair recently reported to the servicer by vendor
5=Poor 6=Very poor or property management company.
------------------------------------------------------------------------------------------------------------------------------------
Property type VARCHAR2(2) 1=Single family 2=Town house Type of property secured by mortgage such
3=Condo 4=Multifamily 5=Other as: single family, 2-4 unit, etc.
6=Prefabricated B=Commercial C=Land only
7=Mobile home U=Unknown D=Farm
A=Church P=PUD R=Row house
O=Co-op M=Manufactured housing 24=2-4 family
CT=Condotel MU=Mixed use
------------------------------------------------------------------------------------------------------------------------------------
Reason for VARCHAR2(3) 001=Death of principal mtgr 02=Illness of principal mtgr Cause of delinquency as identified by
default 003=Illness of mtgr's family member mortgagor.
004=Death of mtgr's family member 005=Marital difficulties
006=Curtailment of income 007=Excessive obligations
008=Abandonment of property 009=Distant employee transfer
011=Property problem 012=Inability to sell property
013=Inability to rent property 014=Military service
015=Other 016=Unemployment
017=Business failure 019=Casualty loss
022=Energy-Environment costs 023=Servicing problems
026=Payment adjustment 027=Payment dispute
029=Transfer ownership pending 030=Fraud
031=Unable to contact borrower INC=Incarceration
------------------------------------------------------------------------------------------------------------------------------------
REO repaired NUMBER(10,2) The projected value of the property that is
value adjusted from the "as is" value assuming
necessary repairs have been made to the
property as determined by the
vendor/property management company.
------------------------------------------------------------------------------------------------------------------------------------
E-2-5
------------------------------------------------------------------------------------------------------------------------------------
REO list price NUMBER(15,2) The most recent listing/pricing amount as
adjustment amount updated by the servicer for REO properties.
------------------------------------------------------------------------------------------------------------------------------------
REO list price DATE(MM/DD/YYYY) The most recent date that the servicer
adjustment date advised the agent to make an adjustment to
the REO listing price.
------------------------------------------------------------------------------------------------------------------------------------
REO value (as is) NUMBER(10,2) The value of the property without making any
repairs as determined by the vendor/property
management company.
------------------------------------------------------------------------------------------------------------------------------------
REO actual DATE(MM/DD/YYYY) The actual date that the sale of the REO
closing date property closed escrow.
------------------------------------------------------------------------------------------------------------------------------------
REO flag VARCHAR2(7) Y=Active REO N=No active REO Servicer defined indicator that identifies
that the property is now Real Estate Owned.
------------------------------------------------------------------------------------------------------------------------------------
REO original DATE(MM/DD/YYYY) The initial/first date that the property was
list date listed with an agent as an REO.
------------------------------------------------------------------------------------------------------------------------------------
REO original NUMBER(15,2) The initial/first price that was used to
list price list the property with an agent as an REO.
------------------------------------------------------------------------------------------------------------------------------------
REO net sales NUMBER(10,2) The actual REO sales price less closing
proceeds costs paid. The net sales proceeds are
identified within the HUD1 settlement
statement.
------------------------------------------------------------------------------------------------------------------------------------
REO sales price NUMBER(10,2) Actual sales price agreed upon by both the
purchaser and servicer as documented on the
HUD1 settlement statement.
------------------------------------------------------------------------------------------------------------------------------------
REO scheduled DATE(MM/DD/YYYY) The date that the sale of the REO property
close date is scheduled to close escrow.
------------------------------------------------------------------------------------------------------------------------------------
REO value date DATE(MM/DD/YYYY) Date that the vendor or management company
completed the valuation of the property
resulting in the REO value (as is).
------------------------------------------------------------------------------------------------------------------------------------
REO value source VARCHAR2(15) BPO=Broker's Price Opinion Appraisal=Appraisal Name of vendor or management company that
provided the REO value (as is).
------------------------------------------------------------------------------------------------------------------------------------
Repay first due DATE(MM/DD/YYYY) The due date of the first scheduled payment
date due under a forbearance or repayment plan
agreed to by both the mortgagor and
servicer.
------------------------------------------------------------------------------------------------------------------------------------
Repay next due DATE(MM/DD/YYYY) The due date of the next outstanding payment
date due under a forbearance or repayment plan
agreed to by both the mortgagor and
servicer.
------------------------------------------------------------------------------------------------------------------------------------
E-2-6
------------------------------------------------------------------------------------------------------------------------------------
Repay plan DATE(MM/DD/YYYY) The servicer defined date upon which the
broken/ servicer considers that the plan is no
reinstated/closed longer in effect as a result of plan
date completion or mortgagor's failure to remit
payments as scheduled.
------------------------------------------------------------------------------------------------------------------------------------
Repay plan DATE(MM/DD/YYYY) The date that both the mortgagor and
created date servicer agree to the terms of a forbearance
or repayment plan.
------------------------------------------------------------------------------------------------------------------------------------
SBO loan number NUMBER(9) Individual number that uniquely identifies
loan as defined by Aurora Master Servicing.
------------------------------------------------------------------------------------------------------------------------------------
Escrow balance/ NUMBER(10,2) The positive or negative account balance
advance balance that is dedicated to payment of hazard
insurance, property taxes, MI, etc. (escrow
items only)
------------------------------------------------------------------------------------------------------------------------------------
Title approval DATE(MM/DD/YYYY) The actual date that the title approval was
letter received received as set forth in the HUD title
date approval letter.
------------------------------------------------------------------------------------------------------------------------------------
Title package DATE(MM/DD/YYYY) The actual date that the title package was
HUD/VA date submitted to either HUD or VA.
------------------------------------------------------------------------------------------------------------------------------------
VA claim funds DATE(MM/DD/YYYY) The actual date that funds were received by
received date the servicer from the VA for the expense
claim submitted by the servicer.
------------------------------------------------------------------------------------------------------------------------------------
VA claim DATE(MM/DD/YYYY) The actual date that the expense claim was
submitted date submitted by the servicer to the VA.
------------------------------------------------------------------------------------------------------------------------------------
VA first funds NUMBER(15,2) The amount of funds received by the servicer
received amount from VA as a result of the specified bid.
------------------------------------------------------------------------------------------------------------------------------------
VA first funds DATE(MM/DD/YYYY) The date that the funds from the specified
received date bid were received by the servicer from the
VA.
------------------------------------------------------------------------------------------------------------------------------------
VA XXX submitted DATE(MM/DD/YYYY) Actual date that the Notice of Election to
date Convey was submitted to the VA.
------------------------------------------------------------------------------------------------------------------------------------
Zip Code VARCHAR2(5) US postal zip code that corresponds to
property location.
------------------------------------------------------------------------------------------------------------------------------------
E-2-7
------------------------------------------------------------------------------------------------------------------------------------
FNMA Delinquency VARCHAR2(3) 09=Forbearance 17=Preforeclosure sale The code that is electronically reported to
status code 24=Drug seizure 26=Refinance 27=Assumption FNMA by the servicer that reflects the
28=Modification 29=Charge-off 30=Third-party sale current defaulted status of a loan. (ie: 65,
31=Probate 32=Military indulgence 43=Foreclosure 67, 43 or 44)
44=Deed-in-lieu 49=Assignment 61=Second lien
considerations
62=VA no-bid 63=VA Refund 64=VA Buydown
65=Ch. 7 bankruptcy 66=Ch. 11 bankruptcy 67=Ch. 13 bankruptcy
------------------------------------------------------------------------------------------------------------------------------------
FNMA delinquency VARCHAR2(3) 001=Death of principal mtgr 002=Illness of principal mtgr The code that is electronically reported to
reason code 003=Illness of mtgr's family member 004=Death of mtgr's family member FNMA by the servicer that describes the
005=Marital difficulties 006=Curtailment of income circumstance that appears to be the primary
007=Excessive obligations 008=Abandonment of property contributing factor to the delinquency.
009=Distant employee transfer 011=Property problem
012=Inability to sell property 013=Inability to rent property
014=Military service 015=Other
016=Unemployment 017=Business failure
019=Casualty loss 022=Energy-Environment costs
023=Servicing problems 026=Payment adjustment
027=Payment dispute 029=Transfer ownership pending
030=Fraud 031=Unable to contact borrower
INC=Incarceration
------------------------------------------------------------------------------------------------------------------------------------
Suspense balance NUMBER(10,2) Money submitted to the servicer, credited to
the mortgagor's account but not allocated to
principal, interest, escrow, etc.
------------------------------------------------------------------------------------------------------------------------------------
Restricted escrow NUMBER(10,2) Money held in escrow by the mortgage company
balance through completion of repairs to property.
------------------------------------------------------------------------------------------------------------------------------------
Investor number NUMBER(10,2) Unique number assigned to a group of loans
in the servicing system.
------------------------------------------------------------------------------------------------------------------------------------
E-2-8
EXHIBIT F
SEC CERTIFICATION
[Date]
[Sarbanes Certifying Party]
Re: Structured Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2005-23
----------------------------
Reference is made to the Reconstituted Servicing Agreement dated as of
December 1, 2005 (the "Agreement"), by and between Xxxxxx Brothers Holdings Inc.
(the "LBH") and HSBC Mortgage Corporation (USA) (the "Servicer") and
acknowledged by Aurora Loan Services, Inc. (the "Master Servicer") and U.S. Bank
National Association, as Trustee (the "Trustee"). I, [identify the certifying
individual], a [title] of the Servicer, hereby certify to the Sarbanes
Certifying Party, and for the benefit of its officer or director signing the
certificate, and with the knowledge and intent that he or she will rely upon
this certification, that:
1. I have reviewed the information required to be delivered to the Master
Servicer pursuant to the Agreement (the "Servicing Information").
2. Based on my knowledge, the Servicing Information does not contain any
material untrue information or omit to state information necessary to make
the Servicing Information, in light of the circumstances under which such
information was provided, not misleading as of the date of this
certification;
3. Based on my knowledge, the Servicing Information has been provided to the
Master Servicer when and as required under the Agreement; and
4. I am responsible for reviewing the activities performed by the Servicer
under the Agreement, and based upon my knowledge and the review required
under the Agreement, and except as disclosed in writing to you on or prior
to the date of this certification either in the accountants' report
required under the Agreement or in disclosure a copy of which is attached
hereto, the Servicer has, for the period covered by the Form 10-K Annual
Report, fulfilled its obligations under this Agreement.
HSBC MORTGAGE CORPORATION (USA)
Name: ____________________________
Title: ____________________________
Date: ____________________________
A-1