EXHIBIT 99.5
EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of October, 2005, by and between XXXXXX BROTHERS HOLDINGS
INC., a Delaware corporation (the "Seller" or "Xxxxxx Brothers Holdings"), and
BANK OF AMERICA, NATIONAL ASSOCIATION, a national banking association (referred
to herein as the "Servicer"), and acknowledged by AURORA LOAN SERVICES LLC, a
Delaware limited liability company ("Aurora"), and HSBC BANK USA, NATIONAL
ASSOCIATION, a national banking association (the "Trustee"), recites and
provides as follows:
RECITALS
WHEREAS, the Xxxxxx Brothers Bank, FSB (the "Bank") acquired certain
conventional, adjustable-rate, residential, first lien mortgage loans (the
"Mortgage Loans") from the Servicer, which Mortgage Loans were originated or
acquired by the Servicer pursuant to the Second Amended and Restated Flow
Mortgage Loan Sale and Servicing Agreement between the Bank, as Purchaser, and
the Servicer, as Seller and as Servicer, dated June 1, 2005 for Adjustable Rate
Mortgage Loans (the "MLSSA") which is annexed hereto as Exhibit B-1.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated
October 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 MLSSA 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 MLSSA.
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"), which in turn has
conveyed the Serviced Mortgage Loans to the Trustee, pursuant to a trust
agreement, dated as of October 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"), Xxxxx Fargo Bank, National Association, as securities
administrator, and SASCO.
WHEREAS, the Serviced Mortgage Loans are currently being serviced by
the Servicer pursuant to the MLSAA.
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
MLSSA shall continue to apply to the Serviced Mortgage Loans 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.
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 MLSSA
incorporated by reference herein (regardless of whether such terms are defined
in the MLSSA), 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 October 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
MLSSA, except as otherwise provided herein and on Exhibit A hereto, and that the
provisions of the MLSSA, 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 Subsection 11.05 and Subsection 11.15 of the MLSSA, the remittance
on November 18, 2005 to the Trust Fund is to include principal due after October
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 Subsection 11.15 of the
MLSSA.
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 SARM 2005-21 Trust Fund (the "Trust Fund") created pursuant to
the Trust Agreement, shall have the same rights as Xxxxxx Brothers Holdings
under the MLSSA to enforce the obligations of the Servicer under the MLSSA and
the term "Purchaser" as used in the MLSSA in connection with any rights of the
Purchaser shall refer to the Trust Fund or, as the context requires, the Master
Servicer acting in its capacity as agent for the Trust Fund, except as otherwise
specified in Exhibit A hereto. The Master Servicer shall be entitled to
terminate the rights and obligations of the Servicer under this Agreement upon
the failure of the Servicer to perform any of its obligations under this
Agreement, which failure results in an Event of Default as provided in
Subsection 13.01 of the MLSSA. Notwithstanding anything herein to the contrary,
in no event shall the Master Servicer assume any of the obligations of Xxxxxx
Brothers Holdings under the MLSSA 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 the Servicer nor the Master
Servicer shall be obligated or required to make any representations and
warranties regarding the characteristics of the Serviced Mortgage Loans (other
than those representations and warranties made by the Servicer in Subsection
7.01
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of the MLSSA) in connection with the transactions contemplated by the Trust
Agreement and issuance of the Certificates issued pursuant thereto.
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 - Xxxxxx Xxxxxxxxx
XXXX 0000-00
Tel: 000-000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled 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: SARM 2005-21
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Issuer Services, SARM 2005-21
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
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Telephone: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Dechert LLP
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All notices required to be delivered to the Servicer hereunder shall be
delivered to the address of its office as set forth in the MLSSA.
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.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
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Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By:
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Servicer
By:
-------------------------------
Name:
Title:
Acknowledged:
AURORA LOAN SERVICES LLC,
as Master Servicer
By:
------------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------
Name:
Title:
EXHIBIT A
Modifications to the MLSSA
1. Unless otherwise specified herein, any provisions of the MLSSA,
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 and indemnification
obligations relating to such representations and warranties, (iii)
Whole-Loan Transfers, Agency Transfers and Securitizations and (iv)
Assignments of Mortgage, shall be disregarded for purposes relating to
this Agreement. The exhibits to the MLSSA and all references to such
exhibits shall also be disregarded.
2. A new definition of "Best Efforts" is hereby added to Section 1 to
immediately follow the definition of "Balloon Mortgage Loan", to read
as follows:
Best Efforts: Efforts determined to be reasonably diligent by
the Servicer in its reasonable discretion. Such efforts do not
require the Servicer to enter into any litigation, arbitration
or other legal or quasi-legal proceeding, nor do they require
the Servicer to advance or expend fees or sums of money in
addition to those specifically set forth in this Agreement.
3. The definition of "Eligible Investments" in Section 1 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 Xxx,
Xxxxxx Mae or Xxxxxxx Mac with any registered broker/dealer
subject to Securities Investors' Protection Corporation
jurisdiction or any commercial
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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 either Rating Agency;
(v) commercial paper (including both
non-interest- bearing discount obligations and
interest-bearing obligations payable on demand or on a
specified date not more than 180 days after the date of
issuance thereof) rated by each Rating Agency in its highest
short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct
ownership interests in future interest or principal payments
on obligations of the United States of America or its agencies
or instrumentalities (which obligations are backed by the full
faith and credit of the United States of America) held by a
custodian in safekeeping on behalf of the holders of such
receipts; and
(viii) any other demand, money market, common trust
fund or time deposit or obligation, or interest-bearing or
other security or investment, (A) rated in the highest rating
category by each Rating Agency or (B) that would not adversely
affect the then current rating by each Rating Agency of any of
the Certificates. Such investments in this subsection (viii)
may include money market mutual funds or common trust funds,
including any fund for which the Trustee, the Master Servicer
or an affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, and/or custodian
or subcustodian, notwithstanding that (x) the Trustee, the
Master Servicer or an affiliate thereof charges and collects
fees and expenses from such funds for services rendered, (y)
the Trustee, the Master Servicer or an affiliate thereof
charges and collects fees and expenses for services rendered
pursuant to this Agreement, and (z) services performed for
such funds and pursuant to this Agreement may converge at any
time; provided, however, that no such instrument shall be an
Eligible Investment if such instrument evidences either (i) a
right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal
and interest payments derived from obligations underlying such
instrument and the principal and interest payments with
respect to such instrument provide a yield to maturity of
greater than 120% of the yield to maturity at par of such
underlying obligations.
4. A new definition of "Xxxxxx Mae" is hereby added to Section 1 to
immediately follow the definition of "GAAP," to read as follows:
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Xxxxxx Xxx: The Government National Mortgage Association, or
any successor thereto.
5. The definition of "Mortgage Loan" in Section 1 is hereby amended in its
entirety to read as follows:
Mortgage Loan: An individual servicing retained Mortgage Loan
which has been purchased from the Servicer by Xxxxxx Brothers
Bank, FSB and 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.
6. The definition of "Mortgage Loan Schedule" in Section 1 is hereby
amended in its entirety to read as follows:
Mortgage Loan Schedule: The schedule of Mortgage Loans setting
forth certain information with respect to the Mortgage Loans
which were purchased from the Servicer by Xxxxxx Brothers
Bank, FSB, which Mortgage Loan Schedule is attached as Exhibit
D to this Agreement.
7. The definition of "Opinion of Counsel" in Section 1 is hereby amended
by adding the following proviso at the end of such definition:
provided that any Opinion of Counsel relating to (a)
qualification of the Mortgage Loans in a REMIC or (b)
compliance with the REMIC Provisions, must be an opinion of
counsel who (i) is in fact independent of the Servicer and the
Master Servicer of the Mortgage Loans, (ii) does not have any
material direct or indirect financial interest in the Servicer
or the Master Servicer of the Mortgage Loans or in an
affiliate of either and (iii) is not connected with the
Servicer or the Master Servicer of the Mortgage Loans as an
officer, employee, director or person performing similar
functions.
8. The definition of "P&I Advance" in Section 1 is hereby deleted in its
entirety and the definition of Monthly Advance is added to read as
follows and moved in Section 1 to immediately follow the definition of
"LTV" and all references to "P&I Advance" shall be replaced with
"Monthly Advance":
Monthly Advance: With respect to each Remittance Date and each
Mortgage Loan, an amount equal to the Monthly Payment (with
the interest portion of such Monthly Payment adjusted to the
Mortgage Loan Remittance Rate) that was due on the Mortgage
Loan on the Due Date in the related Due Period, and that (i)
was delinquent at the close of business on the related
Determination Date and (ii) was not the subject of a previous
Monthly Advance, but only to the extent that such amount is
expected, in the reasonable judgment of the Servicer, to be
recoverable from collections or other recoveries in respect of
such Mortgage Loan. To the extent that the Servicer determines
that any such amount is not recoverable from collections or
other recoveries in respect of such Mortgage Loan, such
determination shall be evidenced by a certificate of a
Servicing Officer delivered to the Master Servicer setting
forth such determination.
9. A new definition of "Prepayment Interest Shortfall Amount" is hereby
added to Section 1 to
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immediately follow the definition of "Person," to read as follows:
Prepayment Interest Shortfall Amount: With respect to any
Mortgage Loan that was subject to a Principal Prepayment in
full during any Due Period, which Principal Prepayment was
applied to such Mortgage Loan prior to such Mortgage Loan's
Due Date in such Due Period, the amount of interest (net of
the related Servicing Fee for Principal Prepayments in full)
that would have accrued on the amount of such Principal
Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage
Loan and ending on the day immediately preceding such Due
Date, inclusive; such amount of interest shall not exceed the
amount of the related Servicing Fee.
10. The definition of "Principal Prepayment" is hereby amended and restated
to read as follows:
Principal Prepayment: Any payment or other recovery of
principal on a Mortgage Loan which is received in advance of
its scheduled Due Date, including any prepayment charge or
premium thereon, and which is not accompanied by an amount of
interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of
prepayment.
11. A new definition of "Principal Prepayment Period" is hereby added to
Section 1 to immediately follow the definition of "Principal
Prepayment," to read as follows:
Principal Prepayment Period: The month preceding the month in
which the related Remittance Date occurs.
12. The definition of "Qualified Depository" is hereby amended and restated
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.
13. A new definition of "Qualified GIC" is hereby added to Section 1 to
immediately follow the definition of "Qualified Depository", to read as
follows:
Qualified GIC: A guaranteed investment contract or surety bond
providing for the investment of funds in the Custodial Account
and insuring a minimum, fixed or floating rate of return on
investments of such funds, which contract or surety bond
shall:
(a) be an obligation of an insurance company or
other corporation whose long-term debt is rated by each Rating
Agency in one of its two highest rating categories or, if such
insurance company has no long-term debt, whose claims paying
ability is rated by each Rating Agency in one of its two
highest rating categories, and whose short-term debt is rated
by each Rating Agency in its highest rating category;
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(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.
14. A new definition of "Rating Agency" is hereby added to Section 1 to
immediately follow the definition of "Qualified GIC," to read as
follows:
Rating Agency: Any of Fitch Ratings, Xxxxx'x Investors
Service, Inc. or Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor of the
foregoing.
15. The definition of "Servicing Fee" in Section 1 is hereby amended in its
entirety to read as follows:
Servicing Fee: An amount equal to one-twelfth the product of
(a) the Servicing Fee Rate and (b) the outstanding principal
balance of the Mortgage Loan. The Servicing Fee is payable
solely from the interest portion (including recoveries with
respect to interest from Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, REO Disposition Proceeds) of
such Monthly Payment collected by the Servicer or as otherwise
provided under this Agreement.
16. The parties acknowledge that Section 2 shall be inapplicable to this
Agreement.
17. The parties acknowledge that the provisions of Section 3 are superseded
by Exhibit D attached hereto.
18. The parties acknowledge that Section 4 shall be inapplicable to this
Agreement.
19. The parties acknowledge that Section 5 shall be inapplicable to this
Agreement.
20. The parties hereto acknowledge that Section 6 (Delivery of Mortgage
Loan Documents) of the MLSSA shall be superseded by the provisions of
the Custodial Agreement.
21. Subsection 7.03 (Remedies for Breach of Representations and Warranties)
is hereby amended in its entirety to read as follows:
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It is understood and agreed that the representations
and warranties set forth in Subsection 7.02 shall survive the
engagement of the Servicer to perform the servicing
responsibilities hereunder and the delivery of the Servicing
Files to the Servicer and shall inure to the benefit of the
Trustee, the Trust Fund and the Master Servicer. Upon
discovery by either the Servicer, the Master Servicer or the
Trustee of a breach of any of the foregoing representations
and warranties which materially and adversely affects the
ability of the Servicer to perform its duties and obligations
under this Agreement or otherwise materially and adversely
affects the value of the Mortgage Loans, the Mortgaged
Property or the priority of the security interest on such
Mortgaged Property or the interest of the Trustee or the Trust
Fund, the party discovering such breach shall give prompt
written notice to the other.
Within 60 days of the earlier of either discovery by
or notice to the Servicer of any breach of a representation or
warranty set forth in Subsection 7.02 which materially and
adversely affects the ability of the Servicer to perform its
duties and obligations under this Agreement or otherwise
materially and adversely affects the value of the Loans, the
Mortgaged Property or the priority of the security interest on
such Mortgaged Property, the Servicer shall use its best
efforts promptly to cure such breach in all material respects
and, if such breach cannot be cured, the Servicer shall, at
the Master Servicer's option, assign the Servicer's rights and
obligations under this Agreement (or respecting the affected
Loans) to a successor Servicer selected by the Master
Servicer. Such assignment shall be made in accordance with
Subsection 14.03.
In addition, the Servicer shall indemnify (from its
own funds) the Trustee, the Trust Fund and Master Servicer and
hold each of them harmless against any costs resulting from
any claim, demand, defense or assertion based on or grounded
upon, or resulting from, a breach of the Servicer's
representations and warranties contained in this Agreement. It
is understood and agreed that the remedies set forth in this
Subsection 7.03 constitute the sole remedies of the Master
Servicer, the Trust Fund and the Trustee respecting a breach
of the foregoing representations and warranties.
Any cause of action against the Servicer relating to
or arising out of the breach of any representations and
warranties made in Subsection 7.02 shall accrue upon (i)
discovery of such breach by the Servicer or notice thereof by
the Trustee or Master Servicer to the Servicer, (ii) failure
by the Servicer to cure such breach within the applicable cure
period, and (iii) demand upon the Servicer by the Trustee or
the Master Servicer for compliance with this Agreement.
22. The parties acknowledge that Section 8 shall be inapplicable to this
Agreement.
23. The parties acknowledge that Section 9 shall be inapplicable to this
Agreement.
24. The parties acknowledge that Section 10 shall be inapplicable to this
Agreement.
25. Subsection 11.01 (Servicer to Act as Servicer; Subservicing) is hereby
amended as follows:
(i) by deleting the fifth paragraph of such
subsection and replacing it with the following:
Consistent with the terms of this Agreement,
the Servicer may waive, modify or vary any term of
any Mortgage Loan or consent to the postponement of
any such term or
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in any manner grant indulgence to any Mortgagor if in
the Servicer's reasonable and prudent determination
such waiver, modification, postponement or indulgence
is not materially adverse to the Master Servicer, the
Trustee or the Trust, provided, however, that unless
the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of
the Servicer, imminent, the Servicer shall not permit
any modification with respect to any Mortgage Loan
that would change the Mortgage Interest Rate, forgive
the payment of principal or interest, reduce or
increase the outstanding principal balance (except
for actual payments of principal) or change the final
maturity date on such Mortgage Loan.
(ii) by adding the following to the end of the
fifth paragraph of such subsection:
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Servicer
shall forward to the Master Servicer copies of any documents
evidencing such assumption, modification, consolidation or
extension. Notwithstanding anything to the contrary contained
in this Agreement, the Servicer shall not make or permit any
modification, waiver or amendment of any term of any Mortgage
Loan that would cause any REMIC created under the Trust
Agreement to fail to qualify as a REMIC or result in the
imposition of any tax under Section 860F(a) or Section 860G(d)
of the Code.
26. Subsection 11.03 (Collection of Mortgage Loan Payments) is hereby
amended by replacing the words "Continuously from the date hereof until
the principal and interest on all Mortgage Loans are paid in full" in
the first and second lines thereof to "Continuously from the Closing
Date until the date the Mortgage Loans cease to be subject to this
Agreement".
27. Subsection 11.04 (Establishment of Custodial Account; Deposits in
Custodial Account) is hereby amended as follows:
(a) the words "Bank of America, National
Association, in trust for Xxxxxx Brothers Bank,
FSB as Purchaser of Mortgage Loans and various
Mortgagors" in the fourth and fifth lines of the
first paragraph shall be replaced by the
following words: "Bank of America, National
Association in trust for the SARM 2005-21 Trust
Fund";
(b) by amending clause (i) to read as follows:
(i) the amount of any Prepayment
Interest Shortfall Amount paid out
of the Servicer's own funds without
any right to reimbursement
therefor;
28. Subsection 11.05 (Withdrawals From the Custodial Account) is hereby
amended as follows:
(a) by replacing the last four lines of clause (c)
with the following:
(c) Servicer's right thereto shall be
prior to the rights of the Trust
Fund; provided however, that in the
event that the Servicer determines
in good faith that any unreimbursed
Monthly Advances will not be
recoverable from amounts
representing late recoveries of
payments of principal or interest
respecting the particular Mortgage
Loan as to which such Monthly
Advance was made or from
Liquidation Proceeds or Insurance
Proceeds with respect to such
Mortgage Loan, the Servicer may
reimburse itself for such amounts
from the Custodial Account, it
being
A-7
understood, in the case of any such
reimbursement, that the Servicer's
right thereto shall be prior to the
rights of the Trust Fund;
(b) by deleting the word "and" at the end of clause
(j), by replacing the period at the end of
clause (k) with a semicolon and by adding the
following new clauses (l) and (m):
(l) to invest funds in the Custodial Account in
Eligible Investments in accordance with
Subsection 11.04; and
(m) to transfer funds to another Qualified
Depository in accordance with Subsection
11.09 hereof.
29. Subsection 11.06 (Establishment of Escrow Account; Deposits in Escrow
Account) shall be amended as follows:
by deleting the words "Bank of America, National Association,
in trust for Xxxxxx Brothers Bank, FSB as Purchaser of
Mortgage Loans and various Mortgagors" in the fourth and fifth
lines of the first paragraph, and replacing them with the
following words:
"Bank of America, National Association, in trust for
the SARM 2005-21 Trust Fund";
30. Subsection 11.13 (Title, Management and Disposition of REO Property) is
hereby amended (i) by adding two new paragraphs after the second
paragraph thereof to read as follows:
In the event that the Trust Fund acquires any REO
Property in connection with a default or imminent default on a
Mortgage Loan, the Servicer shall dispose of such REO Property
not later than the end of the third taxable year after the
year of its acquisition by the Trust Fund unless the Servicer
has applied for and received a grant of extension from the
Internal Revenue Service to the effect that, under the REMIC
Provisions and any relevant proposed legislation and under
applicable state law, the applicable Trust REMIC may hold REO
Property for a longer period without adversely affecting the
REMIC status of such REMIC or causing the imposition of a
federal or state tax upon such REMIC. If the Servicer has
received such an extension (and provided a copy of the same to
the Trustee and the Master Servicer), then the Servicer shall
continue to attempt to sell the REO Property for its fair
market value for such period longer than three years as such
extension permits (the "Extended Period"). If the Servicer has
not received such an extension and the Servicer is unable to
sell the REO Property within the period ending 3 months before
the end of such third taxable year after its acquisition by
the Trust Fund or if the Servicer has received such an
extension, and the Servicer is unable to sell the REO Property
within the period ending three months before the close of the
Extended Period, the Servicer shall, before the end of the
three year period or the Extended Period, as applicable, (i)
purchase such REO Property at a price equal to the REO
Property's fair market value or (ii) auction the REO Property
to the highest bidder (which may be the Servicer) in an
auction reasonably designed to produce a fair price prior to
the expiration of the three-year period or the Extended
Period, as the case may be. The Trustee shall sign any
document or take any other action reasonably requested by the
Servicer which would enable the Servicer, on behalf of the
Trust Fund, to request such grant of extension.
Notwithstanding any other provisions of this
Agreement, no REO Property
A-8
acquired by the Trust Fund shall be rented (or allowed to
continue to be rented) or otherwise used by or on behalf of
the 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 Code; or (ii) subject any Trust REMIC to the
imposition of any federal income taxes on the income earned
from such REO Property, including any taxes imposed by reason
of Sections 860F or 860G(c) of the Code, unless the Servicer
has agreed to indemnify and hold harmless the Trust Fund with
respect to the imposition of any such taxes;
(ii) by replacing the word "advances" in the tenth line of
the existing third paragraph thereof with "Monthly
Advances"; and
(iii) by adding the following to the end of such
Subsection:
Prior to acceptance by the Servicer of an offer to sell any
REO Property, the Servicer shall notify the Master Servicer of
such offer in writing which notification shall set forth all
material terms of said offer (each a "Notice of Sale"). The
Master Servicer shall be deemed to have approved the sale of
any REO Property unless the Master Servicer notifies the
Servicer in writing, within five (5) 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.
31. Subsection 11.15 (Distributions) is hereby amended by adding the
following after the second paragraph of such Subsection:
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: SARM 2005-21
32. Subsection 11.16 (Statements to the Purchaser) is hereby amended in its
entirety to read as follows:
Subsection 11.16 Statements to the 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 11.04
and 11.06 within 30 days of the Closing Date.
Not later than the tenth calendar day of each month
(or if such calendar day is not a Business Day, the
immediately preceding Business Day), 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
A-9
(or in such other format mutually agreed between the Servicer
and the Master Servicer) relating to the period ending on the
last day of the preceding calendar month, (b) all such
information required pursuant to clause (a) above on a
magnetic tape or other similar media reasonably acceptable to
the Master Servicer, (c) on a current and cumulative basis the
amount of any (i) claims filed, (ii) claims payments made,
(iii) claims denied, (iv) policies cancelled with respect to
those Serviced Mortgage Loans covered by any PMI Policy and
(v) all such other information reasonably required by the
Master Servicer and (d) the amount of any Monthly Advances
made by the Servicer on such Monthly Remittance Date.
Beginning with the calendar year 2006, the Servicer
shall prepare and file any and all tax returns, information
statements or other filings for the portion of the tax year
2005 and the portion of subsequent tax years for which the
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.
33. Subsection 11.20 (Annual Statement as to Compliance) is hereby amended
and restated in its entirety to read as follows:
Subsection 11.20 Annual Officer's Certificate.
On or before March 15 of each year, beginning with
2006, the Servicer, at its own expense, will deliver to Xxxxxx
Brothers Holdings and the Master Servicer a Servicing
Officer's certificate stating, as to each signer thereof, that
(i) a review of the activities of the Servicer during such
preceding fiscal year and of performance under this Agreement
has been made under such officers' supervision, and (ii) to
the best of such officers' knowledge, based on such review,
the Servicer has fulfilled all its obligations under this
Agreement for such year, or, if there has been a default in
the fulfillment of all such obligations, specifying each such
default known to such officer and the nature and status
thereof including the steps being taken by the Servicer to
remedy such default.
34. Subsection 11.21 (Annual Independent Public Accountants' Servicing
Report) is hereby amended and restated in its entirety to read as
follows:
Subsection 11.21 Annual Audit Report.
On or before March 15 of each year, beginning with
2006, the Servicer shall, at its own expense, cause a firm of
independent public accountants (who may also render other
services to Servicer), which is a member of the American
Institute of Certified Public Accountants, to furnish to
Xxxxxx Brothers Holdings and the Master Servicer (i) year-end
audited (if available) financial statements of the Servicer
and (ii) a statement to the effect that such firm has examined
certain documents and records for the preceding fiscal year
(or during the period from the date of commencement of such
Servicer's duties hereunder until the end of such preceding
fiscal year in the case of the first such certificate) and
that, on the basis of such examination conducted substantially
in compliance with the Uniform Single Attestation Program for
Mortgage Bankers, such
A-10
firm is of the opinion that Servicer's overall servicing
operations have been conducted in compliance with the Uniform
Single Attestation Program for Mortgage Bankers except for
such exceptions that, in the opinion of such firm, the Uniform
Single Attestation Program for Mortgage Bankers requires it to
report, in which case such exceptions shall be set forth in
such statement.
35. A new Subsection 11.28 (SEC Certificate) is hereby added to read as
follows:
Subsection 11.28 SEC Certificate.
By March 15 of each year, an officer of the Servicer
shall execute and deliver an Officer's Certificate
substantially in the form of Exhibit F attached hereto, signed
by an officer of the Servicer, to the Master Servicer and
Depositor for the benefit of the Master Servicer, the
Depositor and their 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 subsection (a).
36. Subsection 12.01 (Indemnification; Third Party Claims) is hereby
amended and restated in its entirety to read as follows:
The Servicer shall indemnify Xxxxxx Brothers
Holdings, 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 Servicer to
perform its duties and service the Mortgage Loans in
compliance with the terms of this Agreement. The Servicer
immediately shall notify Xxxxxx Brothers Holdings, 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, which consent shall not be
unreasonably withheld or delayed) the defense of any such
claim and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or any of
such parties in respect of such claim. The Servicer shall
follow any written instructions received from the Trustee in
connection with such claim. The Servicer shall provide the
Trustee with a written report of all expenses and advances
incurred by the Servicer pursuant to this Subsection 12.01,
and the Trustee from the assets of the Trust Fund promptly
shall reimburse the Servicer for all amounts advanced by it
pursuant to the preceding sentence except when the claim is in
any way related to the failure of the Servicer to service and
administer the Mortgage Loans in compliance with the terms of
this Agreement or the gross negligence, bad faith or willful
misconduct of this Servicer.
37. Subsection 12.04 (Seller and Servicer Not to Resign) is hereby amended
and restated in its entirety to read as follows:
Subsection 12.04 Limitation on Resignation and Assignment
by Servicer
The Servicer shall neither assign this Agreement or
the servicing hereunder or
A-11
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.
38. Subsection 13.01 (Events of Default) is hereby amended by:
(a) changing any reference to "Purchaser" to "Master
Servicer"
(b) adding the words "within the applicable cure period"
after the word "remedied" in the second line of the
second paragraph; and
(c) amending subclause (g) as follows: "the Servicer 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 Servicer
under this Agreement and replaced the Servicer with a
Xxxxxx Mae or Xxxxxxx Mac approved servicer within 30
days of the absence of such approval;".
39. Subsection 13.02 (Waiver of Default) is hereby amended by changing the
reference to "Purchaser" in such Subsection to "Master Servicer with
the prior written consent of the Trustee".
40. Subsection 14.01 (Termination) is hereby amended by changing the word
"Purchaser" to "Xxxxxx Brothers Holdings."
41. Subsection 14.02 (Termination of the Servicer Without Cause) is hereby
amended by replacing the first reference to "Purchaser" with "Xxxxxx
Brothers Holdings (with the prior consent of the Trustee)" and by
replacing all other references to "Purchaser" with "Xxxxxx Brothers
Holdings."
42. Subsection 14.03 (Successors to the Servicer) is hereby amended in its
entirety to read as follows:
Simultaneously with the termination of the Servicer's
responsibilities and duties under this Agreement pursuant to
Subsections 12.04, 13.01, 14.01 or 14.02, the Master Servicer
shall, in accordance with the provisions of the Trust
Agreement (i) succeed to and assume all of the Servicer's
responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor meeting the eligibility
requirements of this Agreement, and which shall succeed to all
rights and assume all of the responsibilities, duties and
liabilities of the Servicer under this Agreement with the
termination of the Servicer's responsibilities, duties and
liabilities under this Agreement. Any successor to the
Servicer that is not at that time a Servicer of other mortgage
loans for the Trust Fund shall be subject to the approval of
the Master Servicer, Xxxxxx Brothers Holdings, 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
A-12
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 Xxxxxx Brothers Holdings,
as applicable, may make such arrangements for the compensation
of such successor out of payments on the Mortgage Loans as it
and such successor shall agree; provided, however, that no
such compensation shall be in excess of that permitted the
Servicer under this Agreement. In the event that the
Servicer's duties, responsibilities and liabilities under this
Agreement should be terminated pursuant to the aforementioned
Subsections, the Servicer shall discharge such duties and
responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof
with the same degree of diligence and prudence which it is
obligated to exercise under this Agreement, and shall take no
action whatsoever that might impair or prejudice the rights or
financial condition of its successor. The resignation or
removal of the Servicer pursuant to the aforementioned
Subsections shall not become effective until a successor shall
be appointed pursuant to this Subsection 14.03 and shall in no
event relieve the Servicer of the representations and
warranties made pursuant to Section 7 and the remedies
available to the Trust Fund under Subsection 7.03 shall be
applicable to the Servicer notwithstanding any such
resignation or termination of the Servicer, or the termination
of this Agreement.
Within a reasonable period of time, but in no event
longer than 30 days of the appointment of a successor entity,
the Servicer shall prepare, execute and deliver to the
successor entity any and all documents and other instruments,
place in such successor's possession all Servicing Files, and
do or cause to be done all other acts or things necessary or
appropriate to effect the purposes of such notice of
termination. The Servicer shall cooperate with the Trustee and
the Master Servicer, as applicable, and such successor in
effecting the termination of the Servicer's responsibilities
and rights hereunder and the transfer of servicing
responsibilities to the successor Servicer, including without
limitation, the transfer to such successor for administration
by it of all cash amounts which shall at the time be credited
by the Servicer to the Custodial Account or any Escrow Account
or thereafter received with respect to the Mortgage Loans.
Any successor appointed as provided herein shall
execute, acknowledge and deliver to the Trustee, the Servicer
and the Master Servicer an instrument (i) accepting such
appointment, wherein the successor shall make an assumption of
the due and punctual performance and observance of each
covenant and condition to be performed and observed by the
Servicer under this Agreement, whereupon such successor shall
become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer,
with like effect as if originally named as a party to this
Agreement. Any termination or resignation of the Servicer or
termination of this Agreement pursuant to Subsections 12.04,
13.01, 14.01 or 14.02 shall not affect any claims that the
Master Servicer or the Trustee may have against the Servicer
arising out of the Servicer's actions or failure to act prior
to any such termination or resignation.
The Servicer shall deliver within three (3) Business
Days of the appointment of a successor Servicer the funds in
the Account and Escrow Account and all Collateral Files,
Credit Files and related documents and statements held by it
hereunder to the successor Servicer and the Servicer shall
account for all funds and shall execute and deliver such
instruments and do such other things as may reasonably be
required to more fully and definitively vest in the successor
all such rights, powers, duties, responsibilities,
A-13
obligations and liabilities of the Servicer.
Upon a successor's acceptance of appointment as such,
the Servicer shall notify the Trustee and Master Servicer of
such appointment in accordance with the notice procedures set
forth herein.
Except as otherwise provided in this Agreement, all
reasonable costs and expenses incurred in connection with any
transfer of servicing hereunder (whether as a result of
termination or removal of the Servicer or resignation of the
Servicer or otherwise), including, without limitation, the
costs and expenses of the Master Servicer or any other Person
in appointing a successor servicer, or of the Master Servicer
in assuming the responsibilities of the Servicer hereunder, or
of transferring the Servicing Files and the other necessary
data to the successor servicer shall be paid by the
terminated, removed or resigning Servicer from its own funds
without reimbursement.
43. The parties acknowledge that Section 22 shall be inapplicable to this
Agreement.
44. Section 25 (Amendment) is hereby amended by replacing the words "by the
Purchaser, the Seller and the Servicer by written agreement signed by
the parties hereto" with the words "by written agreement by the
Servicer and Xxxxxx Brothers Holdings, with the written consent of the
Master Servicer and the Trustee".
45. Section 29 (Successors and Assigns) is hereby deleted in its entirety.
46. Section 30 (Non-Solicitation) is hereby amended by replacing the words
"the Purchaser" with "Xxxxxx Brothers Holdings" in each instance.
47. A new Section 32 (Intended Third Party Beneficiaries) is hereby added
below Section 31 to read as follows:
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.
X-00
XXXXXXX X-0
Mortgage Loan Sale and Servicing Agreement (dated June 1, 2005)
[See Exhibit 99.6]
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 BEGINNING TRAIL BALANCE Number two decimals
FOR ACTUAL/ACTUAL, REQUIRED
SCHEDPRIN SCHEDULED PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED ACTUAL Number two decimals
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, .00 IF NOT APPLICABLE Number two decimals
TOTREMIT TOTAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
ENDSCHEDBAL ENDING SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED ENDING TRIAL BALANCE Number two decimals
FOR ACTUAL/ACTUAL .00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDACTBAL ENDING TRIAL BALANCE .00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF Number two decimals
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
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 the PMI
filed date company.
Actual bankruptcy DATE(MM/DD/YYYY) Actual date that the bankruptcy petition is filed
start date with the court.
Actual MI claim NUMBER(15,2) The amount of the claim that was filed by the
amount filed servicer with the PMI company.
Actual discharge DATE(MM/DD/YYYY) Actual date that the Discharge Order is entered in
date 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 are
complete date completed by local counsel.
Actual eviction DATE(MM/DD/YYYY) Actual date that the eviction proceedings are
start date commenced by local counsel.
Actual first DATE(MM/DD/YYYY) Actual date that foreclosure counsel filed the
legal date first legal action as defined by state statute.
Actual DATE(MM/DD/YYYY) Actual date that the foreclosure redemption period
redemption end expires.
date
Bankruptcy VARCHAR2(2) 7=Chapter 7 filed Chapter of bankruptcy filed.
chapter 11=Chapter 11 filed
12=Chapter 12 filed
13=Chapter 13 filed
Bankruptcy flag VARCHAR2(2) Y=Active Bankruptcy Servicer defined indicator that identifies that the
N=No Active Bankruptcy property is an asset in an active bankruptcy case.
Bankruptcy Case VARCHAR2(15) The court assigned case number of the bankruptcy
Number filed by a party with interest in the property.
E-2-1
MI claim amount NUMBER(15,2) The amount paid to the servicer by the PMI company
paid as a result of submitting an MI claim.
MI claim funds DATE(MM/DD/YYYY) Actual date that funds were received from the PMI
received date company as a result of transmitting an MI claim.
Current loan NUMBER(10,2) Current unpaid principal balance of the loan as of
amount the date of reporting to Aurora Master Servicing.
Date FC sale DATE(MM/DD/YYYY) Date that the foreclosure sale is scheduled to be
scheduled held.
Date DATE(MM/DD/YYYY) Actual date that the dismissal or relief from stay
relief/dismissal order is entered by the bankruptcy court.
granted
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 VARCHAR2(15) BPO=Broker's Price Name of vendor or management company that provided
value source Opinion the delinquency valuation amount.
Appraisal=Appraisal
Delinquency DATE(MM/DD/YYYY) Date that the delinquency valuation amount was
value date completed by vendor or property management company.
Delinquency flag VARCHAR2(2) Y=90+ delinq. Not in Servicer defined indicator that identifies that the
FC, Bky or Loss mit loan is delinquent but is not involved in loss
N=Less than 90 days mitigation, foreclosure, bankruptcy or REO.
delinquent
Foreclosure flag VARCHAR2(2) Y=Active foreclosure Servicer defined indicator that identifies that the
N=No active foreclosure loan is involved in foreclosure proceedings.
E-2-2
Corporate NUMBER(10,2) Total of all cumulative expenses advanced by the
expense balance 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 local
attorney counsel to begin foreclosure proceedings.
referral date
Foreclosure NUMBER(15,2) Value obtained during the foreclosure process.
valuation amount 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 Name of vendor or management company that provided
valuation source Opinion the foreclosure valuation amount.
Appraisal=Appraisal
FHA 27011A DATE(MM/DD/YYYY) Actual date that the FHA 27011A claim was submitted
transmitted date to HUD.
FHA 27011 B DATE(MM/DD/YYYY) Actual date that the FHA 27011B claim was submitted
transmitted date to HUD.
VA LGC/ FHA Case VARCHAR2(15) Number that is assigned individually to the loan by
number 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 HUD as a
received date result of transmitting the 27011A claim.
Foreclosure DATE(MM/DD/YYYY) Actual date that the foreclosure sale was held.
actual sale date
Servicer loan VARCHAR2(15) Individual number that uniquely identifies loan as
number defined by servicer.
Loan type VARCHAR2(2) 1=FHA Residential Type of loan being serviced generally defined by
2=VA Residential the existence of certain types of insurance.
3=Conventional w/o PMI (ie: FHA, VA, conventional insured, conventional
4=Commercial uninsured, SBA, etc.)
5=FHA Project
6=Conventional w/PMI
7=HUD 235/265
8=Daily Simple Interest
Loan
9=Farm Loan
U=Unknown
S=Sub prime
E-2-3
Loss mit DATE(MM/DD/YYYY) The date determined that the servicer and mortgagor
approval date agree to pursue a defined loss mitigation
alternative.
Loss mit flag VARCHAR2(2) Y=Active loss Servicer defined indicator that identifies that the
mitigation loan is involved in completing a loss mitigation
N=No active loss alternative.
mitigation
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 The defined loss mitigation alternative identified
LT=Litigation pending on the loss mit approval date.
NP=Pending
non-performing sale
CH=Charge off
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 provided
date the loss mitigation valuation amount.
Loss mit value VARCHAR2(15) BPO=Broker's Price Date that the lost mitigation valuation amount was
source Opinion completed by vendor or property management company.
Appraisal=Appraisal
MI certificate VARCHAR2(15) A number that is assigned individually to the loan
number 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 The most recent status of the property regarding
T=Tenant occupied who if anyone is occupying the property. Typically
U=Unknown a result of a routine property inspection.
V=Vacant
First DATE(MM/DD/YYYY) The date that the most recent occupancy status was
Vacancydate/ determined. Typically the date of the most recent
Occupancy status property inspection.
date
E-2-4
Original loan NUMBER(10,2) Amount of the contractual obligations (ie: note and
amount mortgage/deed of trust).
Original value NUMBER(10,2) Appraised value of property as of origination
amount typically determined through the appraisal process.
Origination date DATE(MM/DD/YYYY) Date that the contractual obligations (ie: note and
mortgage/deed of trust) of the mortgagor was
executed.
FHA Part B funds DATE(MM/DD/YYYY) Actual date that funds were received fro HUD as a
received date result of transmitting the 27011B claim.
Post petition DATE(MM/DD/YYYY) The post petition due date of a loan involved in a
due date chapter 13 bankruptcy.
Property VARCHAR2(2) 1=Excellent Physical condition of the property as most recently
condition 2=Good reported to the servicer by vendor or property
3=Average management company.
4=Fair
5=Poor
6=Very poor
Property type VARCHAR2(2) 1=Single family Type of property secured by mortgage such as:
2=Town house single family, 2-4 unit, etc.
3=Condo
4=Multifamily
5=Other
6=Prefabricated
B=Commercial
C=Land only
7=Mobile home
U=Unknown
D=Farm
A=Church
P=PUD
R=Row house
O=Co-op
M=Manufactured housing
24=2-4 family
CT=Condotel
MU=Mixed use
Reason for VARCHAR2(3) 001=Death of principal Cause of delinquency as identified by mortgagor.
default mtgr
02=Illness of principal
mtgr
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
E-2-5
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.
REO list price NUMBER(15,2) The most recent listing/pricing amount as updated
adjustment amount by the servicer for REO properties.
REO list price DATE(MM/DD/YYYY) The most recent date that the servicer advised the
adjustment date agent to make an adjustment to the REO
listing price.
REO value (as is) NUMBER(10,2) The value of the property without making any
repairs as determined by the vendor/property
management company.
REO actual DATE(MM/DD/YYYY) The actual date that the sale of the REO property
closing date closed escrow.
REO flag VARCHAR2(7) Y=Active REO Servicer defined indicator that identifies that the
N=No active REO property is now Real Estate Owned.
REO original DATE(MM/DD/YYYY) The initial/first date that the property was listed
list date with an agent as an REO.
REO original NUMBER(15,2) The initial/first price that was used to list the
list price property with an agent as an REO.
REO net sales NUMBER(10,2) The actual REO sales price less closing costs paid.
proceeds The net sales proceeds are identified within the
HUD1 settlement statement.
REO sales price NUMBER(10,2) Actual sales price agreed upon by both the
purchaser and servicer as documented on the HUD1
settlement statement.
REO scheduled DATE(MM/DD/YYYY) The date that the sale of the REO property is
close date scheduled to close escrow.
REO value date DATE(MM/DD/YYYY) Date that the vendor or management company
completed the valuation of the property resulting
in the REO value (as is).
REO value source VARCHAR2(15) BPO=Broker's Price Name of vendor or management company that provided
Opinion the REO value (as is).
Appraisal=Appraisal
E-2-6
Repay first due DATE(MM/DD/YYYY) The due date of the first scheduled payment due
date under a forbearance or repayment plan agreed to by
both the mortgagor and servicer.
Repay next due DATE(MM/DD/YYYY) The due date of the next outstanding payment due
date under a forbearance or repayment plan agreed to by
both the mortgagor and servicer.
Repay plan DATE(MM/DD/YYYY) The servicer defined date upon which the servicer
broken/reinstated/closed considers that the plan is no longer in effect as a
date result of plan completion or mortgagor's failure to
remit payments as scheduled.
Repay plan DATE(MM/DD/YYYY) The date that both the mortgagor and servicer agree
created date to the terms of a forbearance or repayment plan.
SBO loan number NUMBER(9) Individual number that uniquely identifies loan as
defined by Aurora Master Servicing.
Escrow NUMBER(10,2) The positive or negative account balance that is
balance/advance dedicated to payment of hazard insurance, property
balance taxes, MI, etc. (escrow items only)
Title approval DATE(MM/DD/YYYY) The actual date that the title approval was
letter received received as set forth in the HUD title approval
date letter.
Title package DATE(MM/DD/YYYY) The actual date that the title package was
HUD/VA date submitted to either HUD or VA.
VA claim funds DATE(MM/DD/YYYY) The actual date that funds were received by the
received date servicer from the VA for the expense claim
submitted by the servicer.
VA claim DATE(MM/DD/YYYY) The actual date that the expense claim was
submitted date submitted by the servicer to the VA.
VA first funds NUMBER(15,2) The amount of funds received by the servicer from
received amount VA as a result of the specified bid.
VA first funds DATE(MM/DD/YYYY) The date that the funds from the specified bid were
received date received by the servicer from the VA.
VA XXX submitted DATE(MM/DD/YYYY) Actual date that the Notice of Election to Convey
date was submitted to the VA.
E-2-7
Zip Code VARCHAR2(5) US postal zip code that corresponds to property
location.
FNMA Delinquency VARCHAR2(3) 09=Forbearance The code that is electronically reported to FNMA by
status code 17=Preforeclosure sale the servicer that reflects the current defaulted
24=Drug seizure status of a loan. (ie: 65, 67, 43 or 44)
26=Refinance
27=Assumption
28=Modification
29=Charge-off
30=Third-party sale
31=Probate
32=Military indulgence
43=Foreclosure
44=Deed-in-lieu
49=Assignment
61=Second lien
considerations
62=VA no-bid
63=VA Refund
64=VA Buydown
65=Ch. 7 bankruptcy
66=Ch. 11 bankruptcy
67=Ch. 13 bankruptcy
FNMA delinquency VARCHAR2(3) 001=Death of principal The code that is electronically reported to FNMA by
reason code mtgr the servicer that describes the circumstance that
002=Illness of appears to be the primary contributing factor to
principal mtgr the delinquency.
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
Suspense balance NUMBER(10,2) Money submitted to the servicer, credited to the
mortgagor's account but not allocated to principal,
interest, escrow, etc.
Restricted NUMBER(10,2) Money held in escrow by the mortgage company
escrow balance through completion of repairs to property.
Investor number NUMBER (10,2) Unique number assigned to a group of loans in the
servicing system.
E-2-8
EXHIBIT F
SEC CERTIFICATION
[Date]
Structured Asset Securities Corporation
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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 2005-21
Reference is made to the Reconstituted Servicing Agreement dated as of October
1, 2005 (the "Agreement"), by and among Xxxxxx Brothers Holdings Inc. (the
"LBH") and Bank of America, National Association (the "Servicer") and
acknowledged by Aurora Loan Services LLC (the "Master Servicer") and HSBC Bank
USA, National Association, as Trustee (the "Trustee"). I, [identify the
certifying individual], a [title] of the Servicer, hereby certify to the Master
Servicer and Structured Asset Securities Corporation (the "Depositor"), and
their respective officers, directors and affiliates, and with the knowledge and
intent that they will rely upon this certification, that:
1. I have reviewed the information required to be delivered to the Master
Servicer pursuant to the Agreement (the "Servicing Information").
2. Based on my knowledge, the Servicing Information does not contain any
material untrue information or omit to state information necessary to make
the Servicing Information, in light of the circumstances under which such
information was provided, not misleading as of the date of this
certification;
3. Based on my knowledge, the Servicing Information has been provided to the
Master Servicer when and as required under the Agreement; and
4. I am responsible for reviewing the activities performed by the Servicer
under the Agreement, and based upon my knowledge and the review required
under the Agreement, and except as disclosed in writing to you on or prior
to the date of this certification either in the accountants' report
required under the Agreement or in disclosure a copy of which is attached
hereto, the Servicer has, for the period covered by the Form 10-K Annual
Report, fulfilled its obligations under this Agreement.
BANK OF AMERICA, NATIONAL ASSOCIATION
Name:
------------------------------
Title:
------------------------------
Date:
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F-1
