EXHIBIT 99.5
EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of November, 2003, by and between XXXXXX BROTHERS HOLDINGS
INC., a Delaware corporation (the "Seller"), and SIB MORTGAGE CORP., a New
Jersey corporation (the "Servicer"), having an office at 0000 Xxxxx 00,
Xxxxxxxxx, Xxx Xxxxxx 00000, and acknowledged by AURORA LOAN SERVICES INC., a
Delaware corporation ("Aurora"), and JPMORGAN CHASE BANK (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, which Serviced Mortgage
Loans were either originated or acquired by the Servicer pursuant to the Flow
Mortgage Loan Purchase and Warranties Agreement, dated as of June 10, 2002, by
and between the Bank and SIB Mortgage Corp., as amended by Amendment No. 1,
dated as of November 1, 2002 (collectively, the "Purchase Agreement").
WHEREAS, the Mortgage Loans are currently being serviced by the
Servicer for Xxxxxx Brothers Bank pursuant to a Flow Interim Servicing Agreement
for conventional fixed and adjustable rate residential mortgage loans, dated as
of June 10, 2002, by and between the Bank and the Servicer, as amended by
Amendment No. 1, dated as of November 1, 2002 (collectively, the "Interim
Servicing Agreement"), which is annexed hereto as Exhibit B.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated as
of November 1, 2003 (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 as purchaser
under the Purchase Agreement and the Interim 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 November 1, 2003 (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 November 1, 2003 (the "Trust Agreement"), among the Trustee, Aurora, as
master servicer (together with any successor master servicer appointed pursuant
to the provisions of the Trust Agreement, the "Master Servicer"), and SASCO.
WHEREAS, the Seller desires that the Servicer continue to service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
conditions set forth herein.
WHEREAS, the Seller and the Servicer agree that the provisions of the
Interim 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 and until January 2,
2004 (the "Servicing Transfer Date").
WHEREAS, the Seller and Servicer agree that on the Servicing Transfer
Date the Servicer shall no longer service the Mortgage Loans and shall transfer
servicing of the Mortgage Loans to the successor servicer designated by the
Seller herein.
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 Interim
Servicing Agreement incorporated by reference herein (regardless of whether such
terms are defined in the Interim Servicing Agreement or the Purchase 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 of the Serviced Mortgage Files for
the Trustee pursuant to a Custodial Agreement, dated November 1, 2003, between
U.S. Bank, National Association and the Trustee.
3. Servicing Transfer Date. 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
Interim Servicing Agreement, except as otherwise provided herein and on Exhibit
A hereto, and that the provisions of the Interim 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. The parties hereto acknowledge and agree that the
Servicing Transfer Date with respect to the Mortgage Loans is January 2, 2004.
On such date, the Servicer shall transfer all servicing of the Mortgage Loans in
accordance with the Interim Servicing Agreement and the Purchase Agreement to
the successor servicer designated by the Seller. The Seller hereby designates
Aurora to act as the Servicer of the Mortgage Loans on and after the Servicing
Transfer Date and to service such Mortgage Loans pursuant to an existing
servicing agreement between the Seller and Aurora.
4. Trust Cut-off Date. The parties hereto acknowledge that by operation
of Subsection 2.05 and Subsection 3.01 of the Interim Servicing Agreement, the
remittance on December 18, 2003 to the Trust Fund is to include principal due
after November 1, 2003 (the "Trust Cut-off Date") plus interest, at the Mortgage
Loan Remittance Rate collected during the related Due Period exclusive of any
portion thereof allocable to a period prior to the Trust Cut-off Date, with the
adjustments specified in clause (b) of Subsection 3.01 of the Interim Servicing
Agreement.
5. Servicing Fee. The obligation of the Trust Fund to pay Servicing Fee
set forth the Interim Servicing Agreement is payable solely from the interest
portion (including recoveries with respect to interest from Liquidation
Proceeds, to the extent permitted by Section 2.05 of the Interim Servicing
Agreement) of the Monthly Payment collected by the Servicer or as otherwise
provided under Section 2.05.
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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
SASCO 2003-37A Trust Fund (the "Trust Fund") created pursuant to the Trust
Agreement, shall have the same rights as Xxxxxx Brothers Bank under the Interim
Servicing Agreement to enforce the obligations of the Servicer under the Interim
Servicing Agreement and the term "Purchaser" as used in the Interim 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. Notwithstanding anything herein to the contrary, in no event shall the
Master Servicer assume any of the obligations of Xxxxxx Brothers Bank under the
Interim 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 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 Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: E. Xxxx Xxxxxxxxxx, Master Servicing, SASCO 2003-37A
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All remittances required to be made by the Servicer with respect to the
Mortgage Loans shall be made to the Master Servicer at the following wire
account:
JPMorgan Chase Bank
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc., Master Servicing Payment
Clearing Account
Account No.: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO 2003-37A
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All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
JPMorgan Chase Bank
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Institutional Trust Services/Global Debt - SASCO 0000-00X
Telephone: (000) 000-0000
Facsimile: (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:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx 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: Xxxxxxx X. Xxxxxxxxxx
Title: Authorized Signatory
SIB MORTGAGE CORP.,
as Servicer
By:
-----------------------------
Name:
Title:
Acknowledged By:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:
------------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Chief Executive Officer
JPMORGAN CHASE BANK,
as Trustee
By:
------------------------------------
Name: Pei Xxx Xxxxx
Title: Trust Officer
EXHIBIT A
Modifications to the Interim Servicing Agreement
1. The definition of "Eligible Investments" in Article I is hereby amended
in its entirety 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;
(iii) repurchase agreements collateralized by Direct Obligations
or securities guaranteed by Xxxxxx Mae, Xxxxxx Xxx or Xxxxxxx Mac
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;
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(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.
2. A definition of "Xxxxxx Mae" is hereby added to Article I to
immediately follow the definition of "Xxxxxx Xxx Guides," to read as
follows:
"Xxxxxx Mae": The Government National Mortgage Association, or any
successor thereto.
3. A new definition of "Mortgage Loan" is hereby added to Article I to
immediately follow the definition of "Mortgage Impairment Insurance
Policy," 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 is subject to this Agreement being identified on the
Mortgage Loan Schedule 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.
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4. A new definition of "Mortgage Loan Schedule" is hereby added to Article
I to immediately follow the definition of "Mortgage Loan Remittance
Rate," 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 Purchase Agreement.
5. The definition of "Qualified Depository" is hereby amended and restated
in its entirety 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, 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.
6. A new definition of "Qualified GIC" is hereby added to Article I 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
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(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.
7. A new definition of "Rating Agency" is hereby added to Article I to
immediately follow the definition of "Qualified Insurer", 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.
8. Section 2.01 (Seller to Act as Servicer) is hereby amended as follows:
(i) by deleting the first sentence of the second paragraph of such
section and replacing it with the following:
Consistent with the terms of this Agreement, the Seller 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 Seller's reasonable and prudent
determination such waiver, modification, postponement or indulgence
is not materially adverse to the Purchaser, provided, however, that
unless the Mortgagor is in default with respect to the Mortgage Loan
or such default is, in the judgment of the Seller, imminent, the
Seller shall not permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate, forgive
the payment of principal or interest, reduce or increase the
outstanding principal balance (except for actual payments of
principal) or change the final maturity date on such Mortgage Loan.
(ii) by adding the following to the end of the second paragraph of
such section:
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Servicer shall
forward to the Master Servicer copies of any documents evidencing
such assumption, modification, consolidation or extension.
Notwithstanding anything to the contrary contained in the Interim
Servicing 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.
9. Section 2.03 (Collection of Mortgage Loan Payments) is hereby amended
by replacing the words "Continuously from the date hereof until the
related Servicing Transfer Date" in the first and second lines thereof
to "Continuously from the Closing Date until the date the Mortgage Loan
ceases to be subject to this Agreement".
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10. Section 2.04 (Establishment of and Deposits to Custodial Account) is
hereby amended by:
(i) replacing the words "Xxxxxx Brothers Bank, FSB, Residential
Fixed and Adjustable Rate Mortgage Loans, Group No. 2002-2 and
various Mortgagors" with the words "the SASCO 2003-37A Trust
Fund".
11. Section 2.05 (Permitted Withdrawals From Custodial Account) is hereby
amended by deleting the word "and" at the end of clause (v), by
replacing the period at the end of clause (vi) with a semicolon and by
adding the following new clauses (vii) and (viii):
(vii) to invest funds in the Custodial Account in Eligible
Investments in accordance with Section 2.10; and
(viii) to transfer funds to another Qualified Depository in
accordance with Section 2.10 hereof.
12. Section 2.06 (Establishment of and Deposits to Escrow Account) is
hereby amended by replacing the words "Xxxxxx Brothers Bank, FSB
Residential Fixed and Adjustable Rate Mortgage Loans, Group No. 2002-2,
and various Mortgagors" with "the SASCO 2003-37A Trust Fund."
13. Section 2.17 (Title, Management and Disposition of REO Property) is
hereby amended by:
(i) adding the following paragraph as the third paragraph of such
Section:
Notwithstanding anything to the contrary contained in this
Section 2.17, in connection with a foreclosure or acceptance of a
deed in lieu of foreclosure, in the event the Servicer has
reasonable cause to believe that a Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, or if the
Trustee or the Master Servicer otherwise requests, an environmental
inspection or review of such Mortgaged Property to be conducted by a
qualified inspector shall be arranged by the Servicer. Upon
completion of the inspection, the Servicer shall provide the Trustee
and the Master Servicer with a written report of such environmental
inspection. In the event that the environmental inspection report
indicates that the Mortgaged Property is contaminated by hazardous
or toxic substances or wastes, the Servicer shall not proceed with
foreclosure or acceptance of a deed in lieu of foreclosure. In the
event that the environmental inspection report is inconclusive as to
the whether or not the Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, the Servicer shall not,
without the prior approval of the Master Servicer, proceed with
foreclosure or acceptance of a deed in lieu of foreclosure. In such
instance, the Master Servicer shall be deemed to have approved such
foreclosure or acceptance of a deed in lieu of foreclosure unless
the Master Servicer notifies the Servicer in writing, within two (2)
Business Days after its receipt of written notice of the proposed
foreclosure or deed in lieu of foreclosure from the Servicer, that
it disapproves of the related foreclosure or acceptance of a deed in
lieu of foreclosure. The Servicer shall be reimbursed for all
Servicing Advances made pursuant to this paragraph with respect to
the related Mortgaged Property from the Custodial Account.
(ii) by replacing the existing third paragraph of such section
(before the amendment made by (i) above) by the following
paragraph:
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The Servicer shall use its Best Efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any
event within three years after title has been taken to such REO
Property, unless (a) a REMIC election has not been made with respect
to the arrangement under which the Mortgage Loans and the REO
Property are held, and (b) the Servicer determines, and gives an
appropriate notice to the Master Servicer to such effect, that a
longer period is necessary for the orderly liquidation of such REO
Property. If a period longer than three years is permitted under the
foregoing sentence and is necessary to sell any REO Property, (i)
the Servicer shall report monthly to the Master Servicer as to the
progress being made in selling such REO Property and (ii) if, with
the written consent of the Trustee, a purchase money mortgage is
taken in connection with such sale, such purchase money mortgage
shall name the Servicer as mortgagee, and such purchase money
mortgage shall not be held pursuant to this Agreement, but instead a
separate participation agreement among the Servicer and Trustee
shall be entered into with respect to such purchase money mortgage.
Notwithstanding anything herein to the contrary, the Servicer shall
not be required to provide financing for the sale of any REO
Property.
(iii) by adding the following paragraph to the end of such section:
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) 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.
(iv) by adding the following paragraph at the end of such section:
Notwithstanding any other provisions of this Agreement, no REO
Property acquired by the trust fund provided for in the Trust
Agreement shall be rented (or allowed to continue to be rented) or
otherwise used, held or disposed of by or on behalf of such trust
fund in such a manner or pursuant to any terms that would: (i) cause
such REO Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Internal Revenue
Code of 1986, as amended (the "Code"), or (ii) subject any REMIC
provided for in the Trust Agreement to the imposition of any federal
income taxes on income earned from such REO Property, including any
taxes imposed by reason of Sections 860F or 860G of the Code, unless
the Servicer has agreed to indemnify and hold harmless the trust
fund provided for in the Trust Agreement with respect to the
imposition of any such taxes.
14. Section 3.02 (Statements to Purchaser) is hereby amended as follows:
(i) by replacing the first paragraph of such Section in its entirety
by the following two (2) paragraphs:
Not later than the fifth Business Day of each month, the
Servicer shall furnish to the Master Servicer (a) a monthly
remittance advice in the format set forth in Exhibit E-1 hereto and
a monthly defaulted loan report in the format set forth in Exhibit
E-2 hereto (or in such other format mutually agreed between the
Servicer and the Master Servicer) as to the accompanying remittance
and the period ending on the last day of the preceding Determination
Date and (b) all such information required pursuant to clause (a)
above on a magnetic tape or other similar media reasonably
acceptable to the Master Servicer.
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(ii) by replacing the last paragraph of such Section 3.02 in its
entirety with the following paragraph:
Beginning with calendar year 2004, the Servicer shall prepare
and file any and all tax returns, information statements or other
filings for the portion of the tax year 2003 and the portion of
subsequent tax years for which the Servicer 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 Servicer 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.
15. The parties hereto acknowledge that Section 5.01 (Provision of
Information) and Section 5.02 (Financial Statements; Servicing
Facilities) are inapplicable to this Agreement.
16. Section 6.03 (Termination Upon Transfer of Servicing; Termination
Procedures) is hereby amended by replacing all references to
"Purchaser" in the second and fourth paragraphs with "Xxxxxx Brothers
Holdings Inc."
17. Sections 8.01 (Indemnification) and 8.02 (Limitation on Liability of
Seller and Others) is replaced by the following:
The Servicer shall indemnify 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. 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 judgement 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 relates to
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.
A-7
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.
18. The first paragraph of Section 8.03 (Limitation on Resignation and
Assignment by Seller) is hereby amended in its entirety to read as
follows:
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; provided, however, that 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.
19. A new Section 12.11 (Intended Third Party Beneficiaries) is hereby
added to read as follows:
Section 12.11 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-8
20. A new Section 12.12 (Acknowledgement) is hereby added to read as
follows:
Section 12.12 Acknowledgement.
The Servicer 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 Servicer hereby consents to such assignment and assumption and
acknowledges the Trust Fund's REMIC election.
A-9
EXHIBIT B
Interim Servicing Agreement
See Tab 99.9
B-1
EXHIBIT C
Assignment and Assumption Agreement
[INTENTIONALLY OMITTED]
C-1
EXHIBIT D
Mortgage Loan Schedule
[INTENTIONALLY OMITTED]
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%
Example .0025000 for .25%
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
---------- -----------
% of MI Coverage % of MI Coverage
Actual MI Claim Filed Date The date the Claim to the MI Company was filed
Actual Bankruptcy Start Date (filing date) Actual Bankruptcy Start Date (filing date)
Actual Claim Amount Filed The amount claimed to the MI company on the MI
claim
Actual Discharge Date Date Bankruptcy was Discharged
Actual Due Date Next Payment Due Date
Actual Eviction Complete Date Actual Eviction Complete Date
Actual Eviction Start Date Actual Eviction Start Date
Actual First Legal Date Actual First Legal Date
Actual Notice of Intent Date (breach letter date) Actual Notice of Intent Date (breach letter date)
Actual Payment Plan End Date The date the Last Pre-petition payment is due from
the Trustee in a chapter 13 BK
Actual Payment Plan Start Date The date the First Pre-petition payment is due from
the Trustee in a chapter 13 BK
Actual Redemption End Date Actual Redemption End Date
Actual REO Start Date The date the account was received by the REO
Deaprtment
Appraisal, BPO Costs Total expenses incurred for the purpose of BPO's
or Appraisals.
Bankruptcy Chapter Bankruptcy Chapter 7,11,13
BK Atty Fees & Costs BK Atty Fees & Costs
BK Flag (Man Code) A code that identifies the account as an active
Bankruptcy.
Bnk Case # (7 digit only) Bnk Case # (7 digit only)
City City
Claim Amount Paid MI Claim Amount
Claim Funds Received Date The date the MI Claim funds were received from
the MI Company
Confirmation Hearing Date Confirmation Hearing Date
Current Interest Rate Current Interest Rate
Current Loan Amount Unpaid Principal Balance
Current P&I Payment Amount Current P&I Payment Amount
Date Bid Instructions Sent Date Bid Instructions Sent to Attorney
Date Filed Relief/Dismissal The date the motion for Relief or Dismissal was
filed with the BK Court
Date Loan Reinstated Date Loan Reinstated
Date POC Filed Date proof of claim filed
Date Relief/Dismissal Granted The date the BK court granted the motion for
Relief or Dismissal
Date REO Offer Accepted Date REO Offer Accepted
Date REO Offer Received Date REO Offer Received
Deal Identifier by Loan Security Name/Cross reference Investor ID
(Servicer to Cross reference)
E-2-1
Delinquency Status (Man Code) 30, 60, 90, BK, FC, REO, Claims or a code that can
be decoded to determine the current status of the
account.
Loss Mit Denial Date Loss Mit Denial Date
Eviction Atty Fees & Costs Eviction Atty Fees & Costs
F/B 1st Due (if applicable) F/B 1st Due (if applicable)
F/B Last Due (if applicable) F/B Last Due (if applicable)
FC Atty Fees & Costs FC Atty Fees & Costs
FC Flag A code that identifies the account as an active
Foreclosure.
FC Start Date (referral date) FC Start Date (referral date)
FC Suspended Date FC Suspended Date
FC Valuation Amount The value of the property as determined for the
purpose of foreclosure.
FC Valuation Date The date the property value was determined for the
purpose of foreclosure.
FC Valuation Source The type of valuation that was used to determine
the Fc Valuation amount.
FHA 27011A Transmitted Date FHA 27011A Transmitted Date
FHA 27011B Transmitted Date FHA 27011B Transmitted Date
FHA Case # FHA Case #
FHA Part A Funds Received Date FHA Part A Funds Received Date
First Payment Date First Payment Date
Foreclosure Actual Sale Date Date F/C Sale Held
VA Gaurantee % VA Gaurantee %
Interest Advances Interest Advances
Investor Loan Number Investor Loan Number
INVESTOR/SECURITY BILLING SENT DATE Date claim submitted to investor
Liquidation Status Type of PIF, S/S, 3rd Party etc.
VA Loan Gaurantee Certificate Number VA Loan Gaurantee Certificate Number
Loan Number Servicer Loan Number
Loan Term Loan Term
Loan Type Loan Type
Loss Mit Approval Date Loss Mit Approval Date
Loss Mit Flag (Man Code) A code that identifies the account as an active Loss
Mit account.
Loss Mit Removal Date The date the Loss Mit Department determined that
Loss Mit Options were no longer a viable option.
Loss Mit Start Date Loss Mit Set-up Date
Loss Mit Type S/S, Forbearance, Repay, Mod,etc.
Loss Mit Workstation Status Completed, Removed, Active
MI Certificate Number MI Certificate Number
MI Cost Price percentage, lender paid only
MI Coverage Y/N MI Coverage Y/N
Monthly MIP Cost The monthly fee paid to HUD to maintain coverage
on the account.
Next Payment Adjustment Date Next Payment Adjustment Date
Next Rate Adjustment Date Next Rate Adjustment Date
E-2-2
Occupancy Status Occupancy Status
Occupancy Status Date The date the occupancy status reported was
determined.
Original Loan Amount Original Loan Amount
Original Value Amount The value of the property as determined at the
origination of the account.
Origination Date The date the closing occurred to originate the loan.
ORIGINATION VALUE DATE The date the original Value Amount was
determined.
ORIGINATION VALUE SOURCE The type of valuation that was used to determine
the Original Value amount.
Other Advance Expenses Total Advances minus all other/detail and total
Ownership Code
Paid in Full Date Date loan liquidated from system UPB removed
Paid Off Code
Part B Funds Received Date FHA/VA Only
Partial Prepayment Amount Collected
Post Petition Due Date
Prepayment Expiration Date Term
Prepayment Flag
Prepayment Premium Collected
Prepayment Waived
Product Type
Property Condition
PROPERTY PRESERVATION FEES
Property Type
Realized Gain or Loss
Reason for Default
Reason Suspended
Relief/Dismissal Hearing Date
REO Repaired Value
REO Value(As-is)
REO Actual Closing Date
REO Flag (Man Code)
REO List Date
REO List Price
REO Net Sales proceeds
REO Sales Price
REO Scheduled Close Date
REO Value Date
REO VALUE SOURCE
Repay First Due Date
Repay Last Due Date
Repay Next Due Date
Repay Plan Broken Date
Repay Plan Created Date
SBO LOAN NUMBER
Scheduled Balance
Scheduled Due Date
Servicing Fee
X-0-0
Xxxxx
Xxxxxx Xxxxxxx
T&I Advances
Title Approval Letter Received Date
Title Package to HUD Date
Title Package to VA Date
VA Claim Funds Received Date
VA Claim Submitted Date
VA FIRST FUNDS RECEIVED AMOUNT
VA FIRST FUNDS RECEIVED DATE
VA XXX Submitted Date
ZIP CODE
FNMA ACTION CODE
FNMA DELINQUENCY REASON CODE
E-2-4
