EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"),
entered into as of the 1st day of July, 2005, by and between XXXXXX BROTHERS
HOLDINGS INC., a Delaware corporation (the "Seller" or "Xxxxxx Brothers
Holdings"), COUNTRYWIDE HOME LOANS SERVICING LP, a Texas limited partnership
(the "Servicer"), a wholly owned subsidiary of COUNTRYWIDE HOME LOANS, INC., a
New York corporation ("Countrywide"), and acknowledged by AURORA LOAN SERVICES
LLC, a Delaware limited liability company ("Aurora"), and U.S. BANK NATIONAL
ASSOCIATION (the "Trustee"), recites and provides as follows:
RECITALS
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Bank") acquired
certain fixed and adjustable rate, conventional, first lien, residential
mortgage loans from Countrywide Home Loans, Inc. pursuant to the Flow Seller's
Warranties and Servicing Agreement between the Seller and Countrywide Home
Loans, Inc., dated as of June 1, 2004 for Conventional Residential Fixed Rate
Mortgage Loans (the "SWSA") attached hereto as Exhibit B and such Mortgage Loans
are being serviced on behalf of Countrywide Home Loans, Inc. by the Servicer.
WHEREAS, pursuant to an Assignment and Assumption Agreement,
dated July 1, 2005 (the "Assignment and Assumption Agreement") annexed as
Exhibit C hereto, the Seller acquired from the Bank all of the Bank's right,
title and interest in and to the mortgage loans currently serviced under the
SWSA and assumed for the benefit of each of the Servicer and the Bank the rights
and obligations of the Bank as owner of such mortgage loans pursuant to the
SWSA.
WHEREAS, the Seller has conveyed the mortgage loans identified
on Exhibit D hereto (the "Serviced Mortgage Loans") to Structured Asset
Securities Corporation, a Delaware special purpose corporation ("SASCO"), which
in turn has conveyed the Serviced Mortgage Loans to the Trustee, pursuant to a
trust agreement, dated as of July 1, 2005 (the "Trust Agreement"), among the
Trustee, Aurora, as master servicer ("Aurora," and, together with any successor
master servicer appointed pursuant to the provisions of the Trust Agreement, the
"Master Servicer") and SASCO.
WHEREAS, the Serviced Mortgage Loans are currently being
serviced by the Servicer pursuant to the SWSA.
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 SWSA shall 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 certain circumstances, to terminate the rights and obligations of the
Servicer under this Agreement.
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WHEREAS, the Seller and the Servicer intend that each of the
Master Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the 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 SWSA
incorporated by reference herein (regardless of whether such terms are defined
in the SWSA), 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 Servicing Files for the
Trustee pursuant to a Custodial Agreement, dated July 1, 2005, between U.S. Bank
National Association 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
SWSA, except as otherwise provided herein and on Exhibit A hereto, and the
parties hereto agree that the provisions of the SWSA, 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 Section 4.05 and Section 5.01 of the SWSA, the remittance on August 18, 2005
to the Trust Fund is to include principal due after July 1, 2005 (the "Trust
Cut-off Date") plus interest, at the Mortgage Loan Remittance Rate collected
during the related Due Period exclusive of any portion thereof allocable to a
period prior to the Trust Cut-off Date, with the adjustments specified in
clauses (b), (c) and (d) of Section 5.01 of the SWSA.
5. 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
XXXX 0000-00XX Trust Fund (the "Trust Fund") created pursuant to the Trust
Agreement, shall have the same rights as the Seller under the SWSA to enforce
the obligations of the Servicer under the SWSA and the term "Purchaser" as used
in the SWSA 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 Section 10.01 of the SWSA.
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer assume any of the obligations of the Seller under the SWSA 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.
6. No Representations. Neither Countrywide nor 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 Countrywide in Section 3.02 of
the SWSA as of the date of the sale from Countrywide to the Bank) in connection
with the transactions contemplated by the Trust Agreement and issuance of the
Certificates issued pursuant thereto.
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7. 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, XX 00000
Mail Stop Code - 3195
Attn: E. Xxxx Xxxxxxxxxx - Master Servicing
XXXX 0000-00XX
Tel: 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:
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: XXXX 0000-00XX
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, X.X. 00000
Attention: Corporate Trust Services
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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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: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Dechert, LLP
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All notices required to be delivered to the Servicer hereunder
shall be delivered to its office at the address for notices as set forth in the
SWSA.
8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING NEW YORK OR
OTHER CHOICE OF LAW RULES TO THE CONTRARY.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
10. NIMS Insurer. In addition to the terms and conditions set forth in
this Agreement, any and all rights of the Master Servicer and Trustee to receive
notices from the Servicer pursuant to this Agreement shall hereby be equally
granted to the NIMS Insurer. The Master Servicer or the Trustee shall notify the
Servicer in writing of the name and address of the NIMS insurer and the name and
telephone number of the appropriate contact employee of the NIMS Insurer. For
any and all obligations of the Servicer to obtain consent from the Master
Servicer and the Trustee pursuant to this Agreement, the Servicer must also
obtain such consent from the NIMS Insurer. Notwithstanding any other provision
in this Agreement, the Trust Fund shall hold harmless and indemnify the Servicer
for any failure of the NIMS Insurer to comply with the provisions of this
Agreement. 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 NIMS Insurer receive the benefit of
the provisions of this Agreement as an intended third party beneficiary of this
Agreement to the extent of such provisions. The Servicer shall have the same
obligations to the NIMS Insurer as if it was a party to this Agreement, and the
NIMS Insurer shall have the same rights and remedies to enforce the provisions
of this Agreement as if it was a party to this Agreement. The parties hereto
agree to cooperate in good faith to amend this Agreement in accordance with the
terms hereof to include such other provisions as may be reasonably requested by
the NIMS Insurer. Notwithstanding the foregoing, all rights of the NIMS Insurer
set forth in this Agreement shall exist only so long as the NIM Securities
issued pursuant to the NIMS Transaction remain outstanding or the NIMS Insurer
is owed amounts in respect of its guarantee of payment on such NIM Securities.
NIM Security shall mean any net interest margin security
issued by an owner trust or special purpose entity that is holding all rights,
title and interest in and to the Class X Certificates issued by the Trust Fund.
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NIMS Insurer shall mean collectively, any insurance companies
issuing a financial guaranty insurance policy covering certain payments to be
made on NIM Securities pursuant to a NIMS Transaction.
NIMS Transaction shall mean any transaction in which NIM
Securities are secured, in part, by the payments on the Class X Certificates
issued by the Trust Fund.
11. Distressed Mortgage Loans. The NIMS Insurer may, at its option,
purchase a Distressed Mortgage Loan; provided, however, prior to any such
purchase, the Servicer shall be required to continue to make Monthly Advances
with respect to such Distressed Mortgage Loans, to the extent required by the
applicable servicing provisions in the SWSA. Any such purchase shall be
accomplished by: (A) remittance to the Master Servicer of the Purchase Price (as
defined in the Trust Agreement) for the Distressed Mortgage Loan for deposit
into the Collection Account established by the Master Servicer pursuant to the
Trust Agreement, and (B) the NIMS Insurer's (i) acknowledgment and agreement to
retain Servicer, as the servicer for any such purchased Distressed Mortgage
Loan, to service such Distressed Mortgage Loan pursuant to the provisions of the
SWSA, and (ii) assumption, for the benefit of the Servicer, the rights and
obligations of the Trust Fund as owner of such purchased Distressed Mortgage
Loans pursuant to the SWSA. The Trustee and the Servicer shall immediately
effectuate the conveyance of the purchased Distressed Mortgage Loans to the NIMS
Insurer exercising the purchase option, including prompt delivery of the
Servicing File and all related documentation to the applicable NIMS Insurer. A
Distressed Mortgage Loan is as of any Determination Date a Mortgage Loan that is
delinquent in payment for a period of ninety (90) days or more, without giving
effect to any grace period permitted by the related Mortgage Loan, or for which
the Servicer or Trustee has accepted a deed in lieu of foreclosure.
[SIGNATURE PAGES IMMEDIATELY FOLLOW]
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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
COUNTRYWIDE HOME LOANS SERVICING LP,
as Servicer
By: Countrywide GP, Inc., its General Partner
By:_____________________________________________
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
By:_____________________________________________
Name:
Title:
Acknowledged:
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:
Title:
EXHIBIT A
Modifications to the SWSA
1. Unless otherwise specified herein, any provisions of the SWSA, 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, (iii) Whole Loan and
Pass-Through Transfers and Reconstitution, and (iv) Assignments of
Mortgage, shall be disregarded for purposes relating to this Agreement. The
exhibits to the SWSA and all references to such exhibits shall also be
disregarded.
2. 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.
3. A definition of "Xxxxxx Mae" is hereby added to Article I to immediately
follow the definition of "Xxxxxxx Mac," to read as follows:
Xxxxxx Mae: The Government National Mortgage Association, or any
successor thereto.
4. The definition of "Mortgage Loan" is hereby amended and restated in its
entirety to read as follows:
Mortgage Loan: An individual servicing retained Mortgage Loan which
has been purchased from the Company 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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5. 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 SWSA.
6. 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, F.S.B., a federal savings bank.
7. 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
(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.
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8. The parties acknowledge that the fourth paragraph of Section 2.02 (Books
and Records; Transfers of Mortgage Loans) shall be inapplicable to this
Agreement.
9. The parties acknowledge that Section 2.03 (Delivery of Documents) shall be
superseded by the provisions of the Custodial Agreement.
10. Section 3.01(c) (No Conflicts) is hereby amended by deleting the words "the
acquisition of the Mortgage Loans by the Company, the sale of the Mortgage
Loans to the Purchaser".
11. Section 3.01(f) (Ability to Perform) is hereby amended by deleting the
second sentence thereof.
12. Section 3.01(h) (No Consent Required) is hereby amended by deleting the
words "or the sale of the Mortgage Loans".
13. Section 3.01(i) (Selection Process), Section 3.01(j) (Pool
Characteristics), Section 3.01(l) (Sale Treatment), Section 3.01(n) (No
Brokers' Fees) and Section 3.01 (o) (Origination) shall be inapplicable to
this Agreement.
14. Four new paragraphs are hereby added at the end of Section 3.01 (Company
Representations and Warranties) to read as follows:
It is understood and agreed that the representations and warranties
set forth in Section 3.01 (a) through (h) and (k) are hereby restated
as of the Closing Date and shall survive the engagement of the Company
to perform the servicing responsibilities hereunder and the delivery of
the Servicing Files to the Company and shall inure to the benefit of
the Trustee, the Trust Fund and the Master Servicer. Upon discovery by
either the Company, 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 Company 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 Company of any breach of a representation or warranty set forth in
Section 3.01 which materially and adversely affects the ability of the
Company 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 Company shall use its best efforts promptly to
cure such breach in all material respects and, if such breach cannot be
cured, the Company shall, at the Master Servicer's option, assign the
Company'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 12.01.
In addition, the Company 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
Company's representations and warranties contained in this Agreement.
It is understood and agreed that the remedies set forth in this Section
3.01 constitute the sole remedies of the Master Servicer, the Trust
Fund and the Trustee respecting a breach of the foregoing
representations and warranties.
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Any cause of action against the Company relating to or arising out
of the breach of any representations and warranties made in Section
3.01 shall accrue upon (i) discovery of such breach by the Company or
notice thereof by the Trustee or Master Servicer to the Company, (ii)
failure by the Company to cure such breach within the applicable cure
period, and (iii) demand upon the Company by the Trustee or the Master
Servicer for compliance with this Agreement.
15. Section 4.01 (Company 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 Company 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 Company'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 Company, imminent, the Company 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 Company 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 Company 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.
16. Section 4.04 (Establishment of and Deposits to Custodial Account) is hereby
amended as follows:
the words "in trust for the Purchaser of Conventional Residential
Conventional Residential Mortgage Loans, and various Mortgagors" in the
fourth and fifth lines of the first sentence of the first paragraph
shall be replaced by the following: "in trust for XXXX 0000-00XX Trust
Fund and various Mortgagors".
17. Section 4.05 (Permitted Withdrawals From Custodial Account) is hereby
amended by replacing the words from the word "Purchaser" in the sixth line
of clause (ii) to the end of such clause (ii) with the following:
the Trust Fund; provided however, that in the event that the Company
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
Company may reimburse itself for such amounts from the Custodial
Account, it being understood, in the case of any such reimbursement,
that the Company's right thereto shall be prior to the rights of the
Trust Fund;
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18. Section 4.06 (Establishment of and Deposits to Escrow Account) shall be
amended by deleting the words "Purchaser of Conventional Residential
Mortgage Loans, and various Mortgagors" in the fifth line of the first
sentence of the first paragraph, and replacing it with the following:
"in trust for XXXX 0000-00XX Trust Fund and various Mortgagors."
19. Section 4.15 (Maintenance of LPMI Policy; Claims) is hereby amended by
adding the following sentence to the end of paragraph (a):
The Servicer will notify the Master Servicer or Xxxxxx Brothers
Holdings in the event that the LPMI Policy is terminated.
20. Section 4.16 (Title, Management and Disposition of REO Property) is hereby
amended by (i) replacing the reference to "one year" in the seventh line of
the third paragraph thereof with "three years" and (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
Company 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 Company 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 Company has received such an extension, then the
Company 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 Company has not received such
an extension and the Company 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 Company has received
such an extension, and the Company is unable to sell the REO Property
within the period ending three months before the close of the Extended
Period, the Company 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 Company) 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 Company which would enable the Company, 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) result in
the imposition of any tax upon any REMIC included in the Trust Fund.
A-6
(iii) replacing the word "advances" in the sixth line of the fifth
paragraph thereof with "Monthly Advances", and (iv) by adding the
following to the end of such Section:
Prior to acceptance by the Company of an offer to sell any REO
Property, the Company 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 Company 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 Company shall not proceed with such sale.
21. Section 5.01 (Remittances) is hereby amended by adding the following after
the second paragraph of such Section:
All remittances 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 2005-16XS
22. Section 5.02 (Statements to Purchaser) is hereby amended in its entirety to
read as follows:
Section 5.02 Statements to Master Servicer.
The Company shall deliver or cause to be delivered to the Master
Servicer executed copies of the custodial and escrow account letter
agreements pursuant to Sections 4.04 and 4.06 within 30 days of the
Closing Date.
Not later than the tenth calendar day of each month, the Company
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
Company and the Master Servicer. The information required by Exhibit
E-1 and Exhibit E-2 is limited to that which is readily available to
the Company and is mutually agreed to by the Company and Master
Servicer.
23. Section 9.01 (Indemnification; Third Party Claims) is hereby amended in its
entirety to read as follows:
The Company shall indemnify the Trust Fund, 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 Company to perform its duties and service
the Mortgage Loans in strict compliance with the terms of this
Agreement. The Company immediately shall notify the Purchaser, 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
A-7
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 Company 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 Company for all amounts advanced by it pursuant to the
preceding sentence except when the claim is in any way related to the
Company's indemnification pursuant to Section 6.02, or the failure of
the Company to service and administer the Mortgage Loans in strict
compliance with the terms of this Agreement.
The Trust Fund shall indemnify the Company 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 Company 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.
In the event a dispute arises between an indemnified party and the
Company 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.
24. Section 9.03 (Limitation on Liability of Company and Others) is hereby
amended in its entirety to read as follows:
Neither the Company nor any of the directors, officers, employees or
agents of the Company shall be under any liability to the Master
Servicer, the NIMS Insurer, the Trustee, the Trust Fund or the
Certificateholders for any action taken or for refraining from the
taking of any action in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not
protect the Company or any such person against any liability that would
otherwise be imposed for its disregard for, or failure to perform its
obligations and duties under this Agreement, or by reason of any breach
of the terms and conditions of this Agreement. The Company and any
director, officer, employee or agent of the Company shall be entitled
to indemnification by the Trust Fund and will be held harmless against
any loss, liability or expense incurred in connection with any legal
action relating to this Agreement, the Trust Agreement, or the
Certificates other than any loss, liability or expense incurred by
reason of its disregard for, or failure to perform its obligations and
duties hereunder. The Company and any director, officer, employee or
agent of the Company may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Company shall be under no obligation
to appear in, prosecute or defend any legal action that is not
incidental to its duties to service the Mortgage Loans in accordance
with this Agreement and that in its opinion may involve it in any
expenses or liability; provided, however, that the Company may in its
sole discretion undertake any such action that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder.
In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities
of the Trust Fund and the Company shall be entitled to be reimbursed
therefor out of the Custodial Account it maintains as provided by
Section 4.05.
A-8
25. Section 10.01 (Events of Default) is hereby amended by:
(a) changing any reference to "Purchaser" to "Master Servicer"; and
(b) amending subclause (vii) as follows: "the Company at any time is
neither a Xxxxxx Xxx or Xxxxxxx Mac approved servicer, and the
Master Servicer has not terminated the rights and obligations of
the Company under this Agreement and replaced the Company with a
Xxxxxx Mae or Xxxxxxx Mac approved servicer within 30 days of the
absence of such approval; or".
26. Section 10.02 (Waiver of Defaults) is hereby amended by changing the
reference to "Purchaser" to "Master Servicer".
27. Section 11.01 (Termination) is hereby amended by restating subclause (ii)
thereof to read as below and adding the following sentence after the first
sentence of Section 11.01:
(ii) mutual consent of the Company and the Master Servicer in writing,
provided such termination is also acceptable to the Trustee and
the Rating Agencies.
At the time of any termination of the Company pursuant to this
Section 11.01, the Company 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 Sections 10.01 hereof, such unreimbursed amounts shall not be
reimbursed to the Company until such amounts are received by the Trust
Fund from the related Mortgage Loans.
28. Section 11.02 (Termination Without Cause) is hereby amended by replacing
all references to "Purchaser" with "Xxxxxx Brothers Holdings."
29. Section 12.01 (Successor to Company) is hereby amended in its entirety to
read as follows:
Simultaneously with the termination of the Company's
responsibilities and duties under this Agreement pursuant to Sections
9.04, 10.01, 11.01(ii) or 11.02, the Master Servicer shall, in
accordance with the provisions of the Trust Agreement (i) succeed to
and assume all of the Company'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 Company under this Agreement with the termination of
the Company's responsibilities, duties and liabilities under this
Agreement. Any successor to the Company 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
A-9
shall be in excess of that permitted the Company under this Agreement.
In the event that the Company's duties, responsibilities and
liabilities under this Agreement should be terminated pursuant to the
aforementioned sections, the Company 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 Company pursuant to the
aforementioned sections shall not become effective until a successor
shall be appointed pursuant to this Section 12.01 and shall in no event
relieve the Company of the representations and warranties made pursuant
to Sections 3.01 and the remedies available to the Trust Fund under
Section 3.03 shall be applicable to the Company notwithstanding any
such resignation or termination of the Company, or the termination of
this Agreement.
Within a reasonable period of time, but in no event longer than 30
days of the appointment of a successor entity, the Company 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, 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 Company shall cooperate with the Trustee and the
Master Servicer, as applicable, and such successor in effecting the
termination of the Company'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 Company 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 Company 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 Company under this Agreement, whereupon such successor
shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Company, with like
effect as if originally named as a party to this Agreement. Any
termination or resignation of the Company or termination of this
Agreement pursuant to Sections 9.04, 10.01, 11.01 or 11.02 shall not
affect any claims that (i) the Master Servicer or the Trustee may have
against the Company arising out of the Company's actions or failure to
act, or (ii) the Company may have against the Trust Fund, prior to any
such termination or resignation.
The Company 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 Company 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 Company.
A-10
Upon a successor's acceptance of appointment as such, the Company
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 costs
and expenses incurred in connection with any transfer of servicing
hereunder (as a result of a termination of the Company for cause
pursuant to Section 10.01), including, without limitation, the costs
and expenses of the Master Servicer or any other Person in appointing a
successor servicer, or of the Master Servicer in assuming the
responsibilities of the Company hereunder, or of transferring the
Servicing Files and the other necessary data to the successor servicer
shall be paid by the terminated 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.
30. Section 12.02 (Amendment) is hereby amended and restated in its entirety as
follows:
Section 12.02 (Amendment)
This Agreement may be amended from time to time by written agreement
signed by the Company and the Purchaser, with the written consent of
the Master Servicer, NIMS Insurer and the Trustee.
31. Section 12.04 (Duration of Agreement) is hereby amended by deleting the
last sentence thereof.
32. Section 12.10 (Assignment by Purchaser) is hereby deleted in its entirety.
33. A new Section 12.12 (Intended Third Party Beneficiaries) is hereby added to
read as follows:
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 Company 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 Company 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.
34. A new Section 12.13 (Officer's Certificate) is hereby added to read as
follows:
By March 15th of each year beginning March 15, 2006, or at any other
time upon thirty (30) days written request, an officer of the Servicer
shall execute and deliver an Officer's Certificate substantially in the
form of Exhibit F attached hereto, signed by the senior officer in
charge of servicing of the Servicer or any officer to whom that officer
reports, to the Master Servicer for the benefit of such Master Servicer
and its respective officers, directors and affiliates. Notwithstanding
the foregoing, in the event that as to any year a report on Form 10-K
is not required to be filed with the Securities and Exchange Commission
with respect to the related securitization transaction for the prior
calendar year, then (i) the Depositor shall notify the Servicer of that
fact, and (ii) the Servicer shall not be required to provide the
Officer's Certificate described in this Section 12.13.
A-11
EXHIBIT B
Servicing Agreement
See Exhibit 99.3
B-1
Exhibit C
Assignment and Assumption Agreement
[Intentionally Omitted]
C-1
EXHIBIT D
Schedule of Serviced Mortgage Loans
[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%
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
------------------------------------------------------------------------------------------------------------------------------------
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.
------------------------------------------------------------------------------------------------------------------------------------
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.
------------------------------------------------------------------------------------------------------------------------------------
E-2-1
------------------------------------------------------------------------------------------------------------------------------------
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.
------------------------------------------------------------------------------------------------------------------------------------
Foreclosure DATE(MM/DD/YYYY) Actual date that the loan was referred to
attorney referral local counsel to begin foreclosure
date proceedings.
------------------------------------------------------------------------------------------------------------------------------------
E-2-2
------------------------------------------------------------------------------------------------------------------------------------
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 insured, conventional uninsured, SBA, etc.)
Loan
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.
------------------------------------------------------------------------------------------------------------------------------------
Loss mit flag VARCHAR2(2) Y=Active loss mitigation N=No active loss Servicer defined indicator that identifies
mitigation that the loan is involved in completing a
loss mitigation alternative.
------------------------------------------------------------------------------------------------------------------------------------
E-2-3
------------------------------------------------------------------------------------------------------------------------------------
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 CH=Charge off identified on the loss mit approval date.
sale
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 lost 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).
------------------------------------------------------------------------------------------------------------------------------------
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.
------------------------------------------------------------------------------------------------------------------------------------
E-2-4
------------------------------------------------------------------------------------------------------------------------------------
FHA Part B funds DATE(MM/DD/YYYY) Actual date that funds were received fro HUD
received date 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 02=Illness of Cause of delinquency as identified by
default principal mtgr principal mtgr mortgagor.
003=Illness of mtgr's family member
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
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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.
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REO list price NUMBER(15,2) The most recent listing/pricing amount as
adjustment amount updated by the servicer for REO properties.
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E-2-5
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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.
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REO value (as is) NUMBER(10,2) The value of the property without making any
repairs as determined by the vendor/property
management company.
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REO actual DATE(MM/DD/YYYY) The actual date that the sale of the REO
closing date property closed escrow.
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REO flag VARCHAR2(7) Y=Active REO N=No active REO Servicer defined indicator that identifies
that the property is now Real Estate Owned.
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REO original list DATE(MM/DD/YYYY) The initial/first date that the property was
date listed with an agent as an REO.
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REO original list NUMBER(15,2) The initial/first price that was used to
price list the property with an agent as an REO.
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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.
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REO sales price NUMBER(10,2) Actual sales price agreed upon by both the
purchaser and servicer as documented on the
HUD1 settlement statement.
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REO scheduled DATE(MM/DD/YYYY) The date that the sale of the REO property
close date is scheduled to close escrow.
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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).
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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).
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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.
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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.
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E-2-6
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Repay plan DATE(MM/DD/YYYY) The servicer defined date upon which the
broken/reinstated/ servicer considers that the plan is no
closed date longer in effect as a result of plan
completion or mortgagor's failure to remit
payments as scheduled.
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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.
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SBO loan number NUMBER(9) Individual number that uniquely identifies
loan as defined by Aurora Master Servicing.
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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)
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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.
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Title package DATE(MM/DD/YYYY) The actual date that the title package was
HUD/VA date submitted to either HUD or VA.
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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.
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VA claim DATE(MM/DD/YYYY) The actual date that the expense claim was
submitted date submitted by the servicer to the VA.
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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.
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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.
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VA XXX submitted DATE(MM/DD/YYYY) Actual date that the Notice of Election to
date Convey was submitted to the VA.
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Zip Code VARCHAR2(5) US postal zip code that corresponds to
property location.
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E-2-7
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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 43=Foreclosure 67, 43 or 44)
indulgence
44=Deed-in-lieu 49=Assignment 61=Second
lien considerations
62=VA no-bid 63=VA Refund 64=VA Buydown
65=Ch. 7 66=Ch. 11 67=Ch. 13
bankruptcy bankruptcy bankruptcy
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FNMA delinquency VARCHAR2(3) 001=Death of 002=Illness of The code that is electronically reported to
reason code principal mtgr principal mtgr FNMA by the servicer that describes the
003=Illness of mtgr's family 004=Death of mtgr's family circumstance that appears to be the primary
member member contributing factor to the delinquency.
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 013=Inability to rent property
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
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Suspense balance NUMBER(10,2) Money submitted to the servicer, credited to
the mortgagor's account but not allocated to
principal, interest, escrow, etc.
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Restricted escrow NUMBER(10,2) Money held in escrow by the mortgage company
balance through completion of repairs to property.
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Investor number NUMBER (10,2) Unique number assigned to a group of loans
in the servicing system.
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E-2-8
EXHIBIT F
ANNUAL CERTIFICATION
Aurora Loan Services LLC
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Mail Stop Code - 3195
Re: Structured Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2005-16XS
------------------------------
Reference is made to the Reconstituted Servicing Agreement, dated as of July 1,
2005 (the "Agreement"), by and among Xxxxxx Brothers Holdings Inc., as seller,
and Countrywide Home Loans Servicing LP, as servicer (the "Servicer"). I,
[identify the certifying individual], a [title] of the Servicer hereby certify
to Aurora Loan Services LLC (the "Master Servicer"), and its respective
officers, directors and affiliates, and with the knowledge and intent that it
will rely upon this certification, that:
1. I have reviewed the information required to be delivered to the Master
Servicer pursuant to the Servicing Agreement (the "Servicing Information");
2. Based on my knowledge, the information relating to the Mortgage Loans
submitted by the Servicer in its monthly reporting packages delivered to
the Master Servicer with respect to the Transaction, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the date of this certification;
3. Based on my knowledge, the Servicing Information required to be provided to
the Master Servicer by the Servicer under this Agreement has been provided
to the Master Servicer; and
4. I am responsible for reviewing the activities performed by the Servicer
under this Agreement and based upon the review required hereunder, and
except as disclosed in the Annual Statement of Compliance, the Annual
Independent Certified Public Accountant's Servicing Report and all
servicing reports, officer's certificates and other information relating to
the servicing of the Mortgage Loans submitted to the Master Servicer by the
Servicer, the Servicer has, as of this certification fulfilled its
obligations under this Agreement.
Name: ____________________________
Title: ____________________________
Date: ____________________________
F-1
