Exhibit 99.5
EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into as
of the 1st day of October, 2003, by and between XXXXXX BROTHERS HOLDINGS INC.,
a Delaware corporation (the "Seller"), and SIB MORTGAGE CORP., a New Jersey
corporation (the "Servicer"), having an office at 0000 Xxxxx 00, Xxxxxxxxx,
Xxx Xxxxxx 00000, and acknowledged by AURORA LOAN SERVICES INC., a Delaware
corporation ("Aurora"), and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
a national banking association (the "Trustee"), recites and provides as
follows:
RECITALS
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Bank") acquired certain mortgage
loans (the "Mortgage Loans") from the Servicer, which Serviced Mortgage Loans
were either originated or acquired by the Servicer pursuant to the Flow
Mortgage Loan Purchase and Warranties Agreement, dated as of June 10, 2002, by
and between the Bank and SIB Mortgage Corp., as amended by Amendment No. 1,
dated as of November 1, 2002 (collectively, the "Purchase Agreement"), which
is annexed as Exhibit B hereto.
WHEREAS, the Mortgage Loans are currently being serviced by the Servicer
for Xxxxxx Brothers Bank pursuant to a Flow Interim Servicing Agreement for
conventional fixed and adjustable rate residential mortgage loans, dated as of
June 10, 2002, by and between the Bank and the Servicer, as amended by
Amendment No. 1, dated as of November 1, 2002 (collectively, the "Interim
Servicing Agreement"), which is annexed hereto as Exhibit C.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated as of
October 1, 2003 (the "Assignment and Assumption Agreement") and annexed hereto
as Exhibit D, the Bank has assigned all of its rights, title and interest in
the Mortgage Loans as well as all of its rights and obligations as purchaser
under the Flow Agreement to the Seller, and the Seller has accepted such
assignment.
WHEREAS, the Seller has conveyed certain Mortgage Loans identified on
Exhibit E hereto (the "Serviced Mortgage Loans") to Structured Asset
Securities Corporation, a Delaware special purpose corporation ("SASCO")
pursuant to a Mortgage Loan Sale and Assignment Agreement dated as of October
1, 2003 (the "Mortgage Loan Sale and Assignment Agreement"), which in turn has
conveyed the Serviced Mortgage Loans to the Trustee, pursuant to a trust
agreement, dated as of October 1, 2003 (the "Trust Agreement"), among the
Trustee, Aurora, as master servicer (together with any successor master
servicer appointed pursuant to the provisions of the Trust Agreement, the
"Master Servicer"), and SASCO.
WHEREAS, the Seller desires that the Servicer continue to service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
conditions set forth herein.
WHEREAS, the Seller and the Servicer agree that the provisions of the
Interim Servicing Agreement shall continue to apply to the Serviced Mortgage
Loans, but only to the extent provided herein and that this Agreement shall
govern the Serviced Mortgage Loans for so long as such Serviced Mortgage Loans
remain subject to the provisions of the Trust Agreement and until November 1,
2003 (the "Servicing Transfer Date").
WHEREAS, the Seller and Servicer agree that on the Servicing Transfer Date
the Servicer shall no longer service the Mortgage Loans and shall transfer
servicing of the Mortgage Loans to the successor servicer designated by the
Seller herein.
WHEREAS, the Master Servicer and any successor master servicer shall be
obligated, among other things, to supervise the servicing of the Serviced
Mortgage Loans on behalf of the Trustee, and shall have the right under the
conditions specified herein to terminate for cause the rights and obligations
of the Servicer under this Agreement.
WHEREAS, the Seller and the Servicer intend that each of the Master
Servicer and the Trustee is an intended third party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Seller and the Servicer hereby agree as
follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this Agreement,
including Exhibit A hereto and any provisions of the Interim Servicing
Agreement incorporated by reference herein (regardless of whether such terms
are defined in the Interim Servicing Agreement or the Purchase Agreement),
shall have the meanings ascribed to such terms in the Trust Agreement.
2. Custodianship. The parties hereto acknowledge that U.S. Bank, National
Association will act as custodian of the Serviced Mortgage Files for the
Trustee pursuant to a Custodial Agreement, dated October 1, 2003, between U.S.
Bank, National Association and the Trustee.
3. Servicing Transfer Date. The Servicer agrees, with respect to the
Serviced Mortgage Loans, to perform and observe the duties, responsibilities
and obligations that are to be performed and observed under the provisions of
the Interim Servicing Agreement, except as otherwise provided herein and on
Exhibit A hereto, and that the provisions of the Interim Servicing Agreement,
as so modified, are and shall be a part of this Agreement to the same extent
as if set forth herein in full. The parties hereto acknowledge and agree that
the Servicing Transfer Date with respect to the Mortgage Loans is November 1,
2003. On such date, the Servicer shall transfer all servicing of the Mortgage
Loans in accordance with the Interim Servicing Agreement and the Purchase
Agreement to the successor servicer designated by the Seller. The Seller
hereby designates Aurora to act as the Servicer of the Mortgage Loans on and
after the Servicing Transfer Date and to service such Mortgage Loans pursuant
to an existing servicing agreement between the Seller and Aurora.
4. Trust Cut-off Date. The parties hereto acknowledge that by operation of
Subsection 2.05 and Subsection 3.01 of the Interim Servicing Agreement, the
remittance on October 18, 2003 to the Trust Fund is to include principal due
after October 1, 2003 (the "Trust Cut-off Date") plus interest, at the
Mortgage Loan Remittance Rate collected during the related Due Period
exclusive of any portion thereof allocable to a period prior to the Trust Cut-
off Date, with the adjustments specified in clause (b) of Subsection 3.01 of
the Interim Servicing Agreement.
5. Servicing Fee. The obligation of the Trust Fund to pay Servicing Fee
set forth the Interim Servicing Agreement is payable solely from the interest
portion (including recoveries with respect to interest from Liquidation
Proceeds, to the extent permitted by Section 2.05 of the Interim Servicing
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Agreement) of the Monthly Payment collected by the Servicer or as otherwise
provided under Section 2.05.
6. Master Servicing; Termination of Servicer. The Servicer, including any
successor servicer hereunder, shall be subject to the supervision of the
Master Servicer, which Master Servicer shall be obligated to ensure that the
Servicer services the Serviced Mortgage Loans in accordance with the
provisions of this Agreement. The Master Servicer, acting on behalf of the
Trustee and the SASCO 2003-34A Trust Fund (the "Trust Fund") created pursuant
to the Trust Agreement, shall have the same rights as Xxxxxx Brothers Bank
under the Interim Servicing Agreement to enforce the obligations of the
Servicer under the Interim Servicing Agreement and the term "Purchaser" as
used in the Interim Servicing Agreement in connection with any rights of the
Purchaser shall refer to the Trust Fund or, as the context requires, the
Master Servicer acting in its capacity as agent for the Trust Fund, except as
otherwise specified in Exhibit A hereto. Notwithstanding anything herein to
the contrary, in no event shall the Master Servicer assume any of the
obligations of Xxxxxx Brothers Bank under the Interim Servicing Agreement and
in connection with the performance of the Master Servicer's duties hereunder,
the parties and other signatories hereto agree that the Master Servicer shall
be entitled to all of the rights, protections and limitations of liability
afforded to the Master Servicer under the Trust Agreement.
7. No Representations. Neither the Servicer nor the Master Servicer shall
be obligated or required to make any representations and warranties regarding
the characteristics of the Serviced Mortgage Loans in connection with the
transactions contemplated by the Trust Agreement and issuance of the
Certificates issued pursuant thereto.
8. Notices. All notices and communications between or among the parties
hereto (including any third party beneficiary thereof) or required to be
provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
All notices required to be delivered to the Master Servicer under this
Agreement shall be delivered to the Master Servicer at the following address:
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: E. Xxxx Xxxxxxxxxx, Master Servicing, SASCO 2003-34A
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All remittances required to be made by the Servicer with respect to the
Mortgage Loans shall be made to the Master Servicer at the following wire
account:
0
XXXxxxxx Xxxxx Xxxx
Xxx Xxxx, Xxx Xxxx
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc., Master Servicing
Payment Clearing Account
Account No.: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO 2003-34A
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
Xxxxx Fargo Bank Minnesota, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Client Manager - SASCO 2003-34A
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to the Seller hereunder shall be
delivered to the Seller at the following address:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Contract Finance - Xxxxxx Xxxxxx
Telephone: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
With a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All notices required to be delivered to the Servicer hereunder shall be
delivered to the address of its office as set forth in the first paragraph of
this Agreement.
9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original, but all of which counterparts shall together constitute but one and
the same instrument.
[SIGNATURE PAGES IMMEDIATELY FOLLOWS]
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Executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By:____________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Authorized Signatory
SIB MORTGAGE CORP.,
as Servicer
By:____________________________________
Name:
Title:
Acknowledged By:
AURORA LOAN SERVICES INC.,
as Master Servicer
By:____________________________________
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By:____________________________________
Name: Xxx Xxxxx
Title: Vice President
EXHIBIT A
Modifications to the Interim Servicing Agreement
1. The definition of "Eligible Investments" in Article I is hereby amended
in its entirety to read as follows:
"Eligible Investments": Any one or more of the obligations and
securities listed below which investment provides for a date of
maturity not later than the Determination Date in each month:
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by,
the United States of America or any agency or instrumentality
of the United States of America the obligations of which are
backed by the full faith and credit of the United States of
America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued by,
any depository institution or trust company (including U.S.
subsidiaries of foreign depositories and the Trustee or any
agent of the Trustee, acting in its respective commercial
capacity) incorporated or organized under the laws of the
United States of America or any state thereof and subject to
supervision and examination by federal or state banking
authorities, so long as at the time of investment or the
contractual commitment providing for such investment the
commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company
or deposit institution, as the case may be) have been rated by
each Rating Agency in its highest short-term rating category or
one of its two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by Xxxxxx Mae, Xxxxxx Xxx
or Xxxxxxx Mac with any registered broker/dealer subject to
Securities Investors' Protection Corporation jurisdiction or
any commercial bank insured by the FDIC, if such broker/dealer
or bank has an uninsured, unsecured and unguaranteed obligation
rated by each Rating Agency in its highest short-term rating
category;
(iv) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the
United States of America or any state thereof which have a
credit rating from each Rating Agency, at the time of
investment or the contractual commitment providing for such
investment, at least equal to one of the two highest long-term
credit rating categories of each Rating Agency; provided,
however, that securities issued by any particular corporation
will not be Eligible Investments to the extent that investment
therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of the
Trust Fund to exceed 20% of the sum of the aggregate principal
balance of the Mortgage Loans; provided, further, that such
securities will not be Eligible Investments if they are
published as being under review with negative implications from
any Rating Agency;
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(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable
on demand or on a specified date not more than 180 days after
the date of issuance thereof) rated by each Rating Agency in
its highest short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct
ownership interests in future interest or principal payments on
obligations of the United States of America or its agencies or
instrumentalities (which obligations are backed by the full
faith and credit of the United States of America) held by a
custodian in safekeeping on behalf of the holders of such
receipts; and
(viii) any other demand, money market, common trust fund
or time deposit or obligation, or interest-bearing or other
security or investment, (A) rated in the highest rating
category by each Rating Agency or (B) that would not adversely
affect the then current rating by each Rating Agency of any of
the Certificates. Such investments in this subsection (viii)
may include money market mutual funds or common trust funds,
including any fund for which the Trustee, the Master Servicer
or an affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, and/or custodian or
subcustodian, notwithstanding that (x) the Trustee, the Master
Servicer or an affiliate thereof charges and collects fees and
expenses from such funds for services rendered, (y) the
Trustee, the Master Servicer or an affiliate thereof charges
and collects fees and expenses for services rendered pursuant
to this Agreement, and (z) services performed for such funds
and pursuant to this Agreement may converge at any time;
provided, however, that no such instrument shall be an Eligible
Investment if such instrument evidences either (i) a right to
receive only interest payments with respect to the obligations
underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument
and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of
the yield to maturity at par of such underlying obligations.
2. A definition of "Xxxxxx Xxx" is hereby added to Article I to
immediately follow the definition of "Xxxxxx Mae Guides," to read as
follows:
"Xxxxxx Xxx": The Government National Mortgage Association, or
any successor thereto.
3. A new definition of "Mortgage Loan" is hereby added to Article I to
immediately follow the definition of "Mortgage Impairment Insurance
Policy," to read as follows:
"Mortgage Loan": An individual servicing retained Mortgage Loan
which has been purchased from the Servicer by Xxxxxx Brothers
Bank, FSB and is subject to this Agreement being identified on
the Mortgage Loan Schedule to this Agreement, which Mortgage
Loan includes without limitation the Mortgage Loan documents,
the monthly reports, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds and all other rights, benefits, proceeds
and obligations arising from or in connection with such
Mortgage Loan.
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4. A new definition of "Mortgage Loan Schedule" is hereby added to Article
I to immediately follow the definition of "Mortgage Loan Remittance
Rate," to read as follows:
"Mortgage Loan Schedule": The schedule of Mortgage Loans
attached as Exhibit C to this Agreement setting forth certain
information with respect to the Mortgage Loans purchased from
the Servicer by Xxxxxx Brothers Bank, FSB pursuant to the
Purchase Agreement.
5. The definition of "Qualified Depository" is hereby amended and restated
in its entirety to read as follows:
"Qualified Depository": Any of (i) a federal or state-chartered
depository institution the accounts of which are insured by the
FDIC and whose commercial paper, short-term debt obligations or
other short-term deposits are rated at least "A-1+" by Standard
& Poor's if the deposits are to be held in the account for less
than 30 days, or whose long-term unsecured debt obligations are
rated at least "AA-" by Standard & Poor's if the deposits are
to be held in the account for more than 30 days, or (ii) the
corporate trust department of a federal or state-chartered
depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of
Federal Regulations Section 9.10(b), which, in either case, has
corporate trust powers, acting in its fiduciary capacity, or
(iii) Xxxxxx Brothers Bank, FSB, a federal savings bank.
6. A new definition of "Qualified GIC" is hereby added to Article I to
immediately follow the definition of "Qualified Depository", to read as
follows:
"Qualified GIC": A guaranteed investment contract or surety
bond providing for the investment of funds in the Custodial
Account and insuring a minimum, fixed or floating rate of
return on investments of such funds, which contract or surety
bond shall:
(a) be an obligation of an insurance company or other
corporation whose long-term debt is rated by each Rating Agency
in one of its two highest rating categories or, if such
insurance company has no long-term debt, whose claims paying
ability is rated by each Rating Agency in one of its two
highest rating categories, and whose short-term debt is rated
by each Rating Agency in its highest rating category;
(b) provide that the Servicer may exercise all of the
rights under such contract or surety bond without the necessity
of taking any action by any other Person;
(c) provide that if at any time the then current credit
standing of the obligor under such guaranteed investment
contract is such that continued investment pursuant to such
contract of funds would result in a downgrading of any rating
of the Servicer, the Servicer shall terminate such contract
without penalty and be entitled to the return of all funds
previously invested thereunder, together with accrued interest
thereon at the interest rate provided under such contract to
the date of delivery of such funds to the Trustee;
(d) provide that the Servicer's interest therein shall be
transferable to any successor Servicer or the Master Servicer
hereunder; and
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(e) provide that the funds reinvested thereunder and
accrued interest thereon be returnable to the Custodial
Account, as the case may be, not later than the Business Day
prior to any Determination Date.
7. A new definition of "Rating Agency" is hereby added to Article I to
immediately follow the definition of "Qualified Insurer", to read as
follows:
"Rating Agency": Xxxxx'x Investors Service, Inc., Fitch, Inc.
or Standard & Poor's, a division of the XxXxxx-Xxxx Companies,
Inc., or any successor of the foregoing.
8. Section 2.01 (Seller to Act as Servicer) is hereby amended as follows:
(i) by deleting the first sentence of the second paragraph
of such section and replacing it with the following:
Consistent with the terms of this Agreement, the Seller may
waive, modify or vary any term of any Mortgage Loan or consent
to the postponement of any such term or in any manner grant
indulgence to any Mortgagor if in the Seller's reasonable and
prudent determination such waiver, modification, postponement
or indulgence is not materially adverse to the Purchaser,
provided, however, that unless the Mortgagor is in default with
respect to the Mortgage Loan or such default is, in the
judgement of the Seller, imminent, the Seller shall not permit
any modification with respect to any Mortgage Loan that would
change the Mortgage Interest Rate, forgive the payment of
principal or interest, reduce or increase the outstanding
principal balance (except for actual payments of principal) or
change the final maturity date on such Mortgage Loan.
(ii) by adding the following to the end of the second
paragraph of such section:
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Servicer
shall forward to the Master Servicer copies of any documents
evidencing such assumption, modification, consolidation or
extension. Notwithstanding anything to the contrary contained
in the Interim Servicing Agreement, the Servicer shall not make
or permit any modification, waiver or amendment of any term of
any Mortgage Loan that would cause any REMIC created under the
Trust Agreement to fail to qualify as a REMIC or result in the
imposition of any tax under Section 860F(a) or Section 860G(d)
of the Code.
9. Section 2.03 (Collection of Mortgage Loan Payments) is hereby amended
by replacing the words "Continuously from the date hereof until the
related Servicing Transfer Date" in the first and second lines thereof
to "Continuously from the Closing Date until the date the Mortgage Loan
ceases to be subject to this Agreement".
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10. Section 2.04 (Establishment of and Deposits to Custodial Account) is
hereby amended by:
(i) replacing the words "Xxxxxx Brothers Bank, FSB, Residential
Fixed and Adjustable Rate Mortgage Loans, Group No. 2002-2 and
various Mortgagors" with the words "the SASCO 2003-34A Trust
Fund".
11. Section 2.05 (Permitted Withdrawals From Custodial Account) is hereby
amended by deleting the word "and" at the end of clause (v), by
replacing the period at the end of clause (vi) with a semicolon and by
adding the following new clauses (vii) and (viii):
(vii) to invest funds in the Custodial Account in Eligible
Investments in accordance with Section 2.10; and
(viii) to transfer funds to another Qualified Depository
in accordance with Section 2.10 hereof.
12. Section 2.06 (Establishment of and Deposits to Escrow Account) is
hereby amended by replacing the words "Xxxxxx Brothers Bank, FSB
Residential Fixed and Adjustable Rate Mortgage Loans, Group No. 2002-2,
and various Mortgagors" with "the SASCO 2003-34A Trust Fund."
13. Section 2.17 (Title, Management and Disposition of REO Property) is
hereby amended by:
(i) adding the following paragraph as the third paragraph
of such Section:
Notwithstanding anything to the contrary contained in this
Section 2.17, in connection with a foreclosure or acceptance of
a deed in lieu of foreclosure, in the event the Servicer has
reasonable cause to believe that a Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, or if
the Trustee or the Master Servicer otherwise requests, an
environmental inspection or review of such Mortgaged Property
to be conducted by a qualified inspector shall be arranged by
the Servicer. Upon completion of the inspection, the Servicer
shall provide the Trustee and the Master Servicer with a
written report of such environmental inspection. In the event
that the environmental inspection report indicates that the
Mortgaged Property is contaminated by hazardous or toxic
substances or wastes, the Servicer shall not proceed with
foreclosure or acceptance of a deed in lieu of foreclosure. In
the event that the environmental inspection report is
inconclusive as to the whether or not the Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, the
Servicer shall not, without the prior approval of the Master
Servicer, proceed with foreclosure or acceptance of a deed in
lieu of foreclosure. In such instance, the Master Servicer
shall be deemed to have approved such foreclosure or acceptance
of a deed in lieu of foreclosure unless the Master Servicer
notifies the Servicer in writing, within two (2) Business Days
after its receipt of written notice of the proposed foreclosure
or deed in lieu of foreclosure from the Servicer, that it
disapproves of the related foreclosure or acceptance of a deed
in lieu of foreclosure. The Servicer shall be reimbursed for
all Servicing Advances made pursuant to this paragraph with
respect to the related Mortgaged Property from the Custodial
Account.
(ii) by replacing the existing third paragraph of such section
(before the amendment made by (i) above) by the following
paragraph:
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The Servicer shall use its Best Efforts to dispose of the
REO Property as soon as possible and shall sell such REO
Property in any event within three years after title has been
taken to such REO Property, unless (a) a REMIC election has not
been made with respect to the arrangement under which the
Mortgage Loans and the REO Property are held, and (b) the
Servicer determines, and gives an appropriate notice to the
Master Servicer to such effect, that a longer period is
necessary for the orderly liquidation of such REO Property. If
a period longer than three years is permitted under the
foregoing sentence and is necessary to sell any REO Property,
(i) the Servicer shall report monthly to the Master Servicer as
to the progress being made in selling such REO Property and
(ii) if, with the written consent of the Trustee, a purchase
money mortgage is taken in connection with such sale, such
purchase money mortgage shall name the Servicer as mortgagee,
and such purchase money mortgage shall not be held pursuant to
this Agreement, but instead a separate participation agreement
among the Servicer and Trustee shall be entered into with
respect to such purchase money mortgage. Notwithstanding
anything herein to the contrary, the Servicer shall not be
required to provide financing for the sale of any REO Property.
(iii) by adding the following paragraph to the end of such
section:
Prior to acceptance by the Servicer of an offer to sell any
REO Property, the Servicer shall notify the Master Servicer of
such offer in writing which notification shall set forth all
material terms of said offer (each a "Notice of Sale"). The
Master Servicer shall be deemed to have approved the sale of
any REO Property unless the Master Servicer notifies the
Servicer in writing, within five (5) days after its receipt of
the related Notice of Sale, that it disapproves of the related
sale, in which case the Servicer shall not proceed with such
sale.
(iv) by adding the following paragraph at the end of such
section:
Notwithstanding any other provisions of this Agreement, no
REO Property acquired by the trust fund provided for in the
Trust Agreement shall be rented (or allowed to continue to be
rented) or otherwise used, held or disposed of by or on behalf
of such trust fund in such a manner or pursuant to any terms
that would: (i) cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8)
of the Internal Revenue Code of 1986, as amended (the "Code"),
or (ii) subject any REMIC provided for in the Trust Agreement
to the imposition of any federal income taxes on income earned
from such REO Property, including any taxes imposed by reason
of Sections 860F or 860G of the Code, unless the Servicer has
agreed to indemnify and hold harmless the trust fund provided
for in the Trust Agreement with respect to the imposition of
any such taxes.
14. Section 3.02 (Statements to Purchaser) is hereby amended as follows:
(i) by replacing the first paragraph of such Section in
its entirety by the following two (2) paragraphs:
Not later than the fifth Business Day of each month, the
Servicer shall furnish to the Master Servicer (a) a monthly
remittance advice in the format set forth in Exhibit F-1 hereto
and a monthly defaulted loan report in the format set forth in
Exhibit F-2 hereto
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(or in such other format mutually agreed between the Servicer
and the Master Servicer) as to the accompanying remittance and
the period ending on the last day of the preceding
Determination Date and (b) all such information required
pursuant to clause (a) above on a magnetic tape or other
similar media reasonably acceptable to the Master Servicer.
(ii) by replacing the last paragraph of such Section 3.02
in its entirety with the following paragraph:
Beginning with calendar year 2004, the Servicer shall
prepare and file any and all tax returns, information
statements or other filings for the portion of the tax year
2003 and the portion of subsequent tax years for which the
Servicer has serviced some or all of the Mortgage Loans
hereunder as such returns, information statements or other
filings are required to be delivered to any governmental taxing
authority or to the Master Servicer pursuant to any applicable
law with respect to the Mortgage Loans and the transactions
contemplated hereby. In addition, the Servicer shall provide
the Master Servicer with such information concerning the
Mortgage Loans as is necessary for the Master Servicer to
prepare the Trust Fund's federal income tax return as the
Master Servicer may reasonably request from time to time.
15. The parties hereto acknowledge that Section 5.01 (Provision of
Information) and Section 5.02 (Financial Statements; Servicing
Facilities) are inapplicable to this Agreement.
16. Section 6.03 (Termination Upon Transfer of Servicing; Termination
Procedures) is hereby amended by replacing all references to
"Purchaser" in the second and fourth paragraphs with "Xxxxxx Brothers
Holdings Inc."
17. Sections 8.01 (Indemnification) and 8.02 (Limitation on Liability of
Seller and Others) is replaced by the following:
The Servicer shall indemnify the Trust Fund, the Depositor,
the Trustee and the Master Servicer and hold each of them
harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgements, and any other costs, fees
and expenses that any of such parties may sustain in any way
related to the failure of the Servicer to perform its duties
and service the Mortgage Loans in strict compliance with the
terms of this Agreement. The Servicer immediately shall notify
Xxxxxx Brothers Holdings Inc., the Depositor, the Master
Servicer and the Trustee or any other relevant party if a claim
is made by a third party with respect to this Agreement or the
Mortgage Loans, assume (with the prior written consent of the
indemnified party) the defense of any such claim and pay all
expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgement or decree
which may be entered against it or any of such parties in
respect of such claim. The Servicer shall follow any written
instructions received from the Trustee in connection with such
claim. The Trustee, from the assets of the Trust Fund, promptly
shall reimburse the Servicer for all amounts advanced by it
pursuant to the preceding sentence except when the claim is in
any way relates to the failure of the Servicer to service and
administer the Mortgage Loans in strict compliance with the
terms of this Agreement.
The Trust Fund shall indemnify the Servicer and hold it
harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other costs, fees
and expenses that the Servicer
A-7
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 Servicer with respect to any of the rights and
obligations of the parties pursuant to this Agreement and such
dispute is adjudicated in a court of law, by an arbitration
panel or any other judicial process, then the losing party
shall indemnify and reimburse the winning party for all
attorney's fees and other costs and expenses related to the
adjudication of said dispute.
18. The first paragraph of Section 8.03 (Limitation on Resignation and
Assignment by Seller) is hereby amended in its entirety to read as
follows:
The Servicer shall neither assign this Agreement or the
servicing hereunder or delegate its rights or duties hereunder
or any portion hereof (to other than a third party in the case
of outsourcing routine tasks such as taxes, insurance and
property inspection, in which case the Servicer shall be fully
liable for such tasks as if the Servicer performed them itself)
or sell or otherwise dispose of all or substantially all of its
property or assets without the prior written consent of the
Trustee and the Master Servicer, which consent shall be granted
or withheld in the reasonable discretion of such parties;
provided, however, that the Servicer may assign its rights and
obligations hereunder without prior written consent of the
Trustee and the Master Servicer to any entity that is directly
owned or controlled by the Servicer, and the Servicer
guarantees the performance of such entity hereunder. In the
event of such assignment by the Servicer, the Servicer shall
provide the Trustee and the Master Servicer with a written
statement guaranteeing the successor entity's performance of
the Servicer's obligations under the Agreement.
19. A new Section 12.11 (Intended Third Party Beneficiaries) is hereby
added to read as follows:
Section 12.11 Intended Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary, the
parties to this Agreement agree that it is appropriate, in
furtherance of the intent of such parties as set forth herein,
that the Master Servicer and the Trustee receive the benefit of
the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such
provisions. The Servicer shall have the same obligations to the
Master Servicer and the Trustee as if they were parties to this
Agreement, and the Master Servicer and the Trustee shall have
the same rights and remedies to enforce the provisions of this
Agreement as if they were parties to this Agreement. The
Servicer shall only take direction from the Master Servicer (if
direction by the Master Servicer is required under this
Agreement) unless otherwise directed by this Agreement.
Notwithstanding the foregoing, all rights and obligations of
the Master Servicer and the Trustee hereunder (other than the
right to indemnification) shall terminate upon termination of
the Trust Agreement and of the Trust Fund pursuant to the Trust
Agreement.
20. A new Section 12.12 (Acknowledgement) is hereby added to read as
follows:
Section 12.12 Acknowledgement.
The Servicer hereby acknowledges that the rights of Xxxxxx
Brothers Bank, FSB under the Servicing Agreement, as amended by
this Agreement, will be assigned to SASCO
A-8
under the Mortgage Loan Sale and Assignment Agreement, and
subsequently to the Trust Fund under the Trust Agreement and
agrees that the Mortgage Loan Sale and Assignment Agreement and
the Trust Agreement will constitute an assignment and
assumption of the rights of Xxxxxx Brothers Bank, FSB under the
Servicing Agreement to SASCO and the Trust Fund, as applicable.
In addition, the Trust Fund will make a REMIC election. The
Servicer hereby consents to such assignment and assumption and
acknowledges the Trust Fund's REMIC election.
A-9
EXHIBIT B
Purchase Agreement
[Intentionally Omitted]
B-1
EXHIBIT C
Interim Servicing Agreement
[See Item #99.8]
C-1
EXHIBIT D
Assignment and Assumption Agreement
[Intentionally Omitted]
D-1
EXHIBIT E
Mortgage Loan Schedule
[Intentionally Omitted]
E-1
EXHIBIT F-1
FORM OF MONTHLY REMITTANCE ADVICE
FIELD NAME DESCRIPTION FORMAT
--------- ----------- ------
INVNUM INVESTOR LOAN NUMBER Number no decimals
SERVNUM SERVICER LOAN NUMBER, REQUIRED Number no decimals
BEGSCHEDBAL BEGINNING SCHEDULED BALANCE FOR SCHED/SCHED Number two decimals
BEGINNING TRAIL BALANCE FOR ACTUAL/ACTUAL,
REQUIRED
SCHEDPRIN SCHEDULED PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED Number two decimals
ACTUAL PRINCIPAL COLLECTED FOR ACTUAL/ACTUAL,
REQUIRED, .00 IF NO COLLECTIONS
CURT1 CURTAILMENT 1 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT1DATE CURTAILMENT 1 DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
CURT1ADJ CURTAILMENT 1 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
CURT2 CURTAILMENT 2 XXXXXX, .00 IF NOT APPLICABLE Number two decimals
CURT2DATE CURTAILMENT 2 DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
CURT2ADJ CURTAILMENT 2 ADJUSTMENT, .00 IF NOT APPLICABLE Number two decimals
LIQPRIN PAYOFF, LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
OTHPRIN OTHER PRINCIPAL, .00 IF NOT APPLICABLE Number two decimals
PRINREMIT TOTAL PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
INTREMIT NET INTEREST REMIT, INCLUDE PAYOFF INTEREST, Number two decimals
.00 IF NOT APPLICABLE
TOTREMIT TOTAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE Number two decimals
ENDSCHEDBAL ENDING SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED Number two decimals
ENDING TRIAL BALANCE FOR ACTUAL/ACTUAL
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDACTBAL ENDING TRIAL BALANCE Number two decimals
.00 IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
ENDDUEDATE ENDING ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT DD-MMM-YY
ACTCODE 60 IF PAIDOFF, BLANK IF NOT APPLICABLE Number no decimals
ACTDATE ACTUAL PAYOFF DATE, BLANK IF NOT APPLICABLE DD-MMM-YY
INTRATE INTEREST RATE, REQUIRED Number seven decimals
Example .0700000 for 7.00%
Example .0025000 for .25%
F-1-1
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
F-1-2
EXHIBIT F-2
STANDARD LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
FIELD NAME DESCRIPTION
---------- -----------
% of MI Coverage % of MI Coverage
Actual MI Claim Filed Date The date the Claim to the MI
Company was filed
Actual Bankruptcy Start Date (filing date) Actual Bankruptcy Start Date
(filing date)
The amount claimed to the MI
Actual Claim Amount Filed company on the MI claim
Actual Discharge Date Date Bankruptcy was Discharged
Actual Due Date Next Payment Due Date
Actual Eviction Complete Date Actual Eviction Complete Date
Actual Eviction Start Date Actual Eviction Start Date
Actual First Legal Date Actual First Legal Date
Actual Notice of Intent Date (breach Actual Notice of Intent Date
letter date) (breach letter date)
Actual Payment Plan End Date The date the Last Pre-petition
payment is due from the Trustee
in a chapter 13 BK
Actual Payment Plan Start Date The date the First Pre-petition
payment is due from the Trustee
in a chapter 13 BK
Actual Redemption End Date Actual Redemption End Date
Actual REO Start Date The date the account was received
by the REO Deaprtment
Appraisal, BPO Costs Total expenses incurred for the
purpose of BPO's or Appraisals.
Bankruptcy Chapter Bankruptcy Chapter 7,11,13
BK Atty Fees & Costs BK Atty Fees & Costs
BK Flag (Man Code) A code that identifies the
account as an active Bankruptcy.
Bnk Case # (7 digit only) Bnk Case # (7 digit only)
City City
Claim Amount Paid MI Claim Amount
Claim Funds Received Date The date the MI Claim funds were
received from the MI Company
Confirmation Hearing Date Confirmation Hearing Date
Current Interest Rate Current Interest Rate
Current Loan Amount Unpaid Principal Balance
Current P&I Payment Amount Current P&I Payment Amount
Date Bid Instructions Sent Date Bid Instructions Sent to
Attorney
Date Filed Relief/Dismissal The date the motion for Relief or
Dismissal was filed with the BK
Court
Date Loan Reinstated Date Loan Reinstated
Date POC Filed Date proof of claim filed
Date Relief/Dismissal Granted The date the BK court granted the
motion for Relief or Dismissal
Date REO Offer Accepted Date REO Offer Accepted
Date REO Offer Received Date REO Offer Received
Deal Identifier by Loan Security Name/Cross reference
Investor ID (Servicer to Cross
reference)
Delinquency Status (Man Code) 30, 60, 90, BK, FC, REO, Claims
or a code that can be
F-2-1
decoded to determine the current
status of the account.
Loss Mit Denial Date Loss Mit Denial Date
Eviction Atty Fees & Costs Eviction Atty Fees & Costs
F/B 1st Due (if applicable) F/B 1st Due (if applicable)
F/B Last Due (if applicable) F/B Last Due (if applicable)
FC Atty Fees & Costs FC Atty Fees & Costs
FC Flag A code that identifies the
account as an active Foreclosure.
FC Start Date (referral date) FC Start Date (referral date)
FC Suspended Date FC Suspended Date
FC Valuation Amount The value of the property as
determined for the purpose of
foreclosure.
FC Valuation Date The date the property value was
determined for the purpose of
foreclosure.
FC Valuation Source The type of valuation that was
used to determine the Fc
Valuation amount.
FHA 27011A Transmitted Date FHA 27011A Transmitted Date
FHA 27011B Transmitted Date FHA 27011B Transmitted Date
FHA Case # FHA Case #
FHA Part A Funds Received Date FHA Part A Funds Received Date
First Payment Date First Payment Date
Foreclosure Actual Sale Date Date F/C Sale Held
VA Gaurantee % VA Gaurantee %
Interest Advances Interest Advances
Investor Loan Number Investor Loan Number
INVESTOR/SECURITY BILLING SENT DATE Date claim submitted to investor
Liquidation Status Type of PIF, S/S, 3rd Party etc.
VA Loan Gaurantee Certificate Number VA Loan Gaurantee Certificate
Number
Loan Number Servicer Loan Number
Loan Term Loan Term
Loan Type Loan Type
Loss Mit Approval Date Loss Mit Approval Date
Loss Mit Flag (Man Code) A code that identifies the
account as an active Loss Mit
account.
Loss Mit Removal Date The date the Loss Mit Department
determined that Loss Mit Options
were no longer a viable option.
Loss Mit Start Date Loss Mit Set-up Date
Loss Mit Type S/S, Forbearance, Repay, Mod,etc.
Loss Mit Workstation Status Completed, Removed, Active
MI Certificate Number MI Certificate Number
MI Cost Price percentage, lender paid
only
MI Coverage Y/N MI Coverage Y/N
Monthly MIP Cost The monthly fee paid to HUD to
maintain coverage on the account.
Next Payment Adjustment Date Next Payment Adjustment Date
Next Rate Adjustment Date Next Rate Adjustment Date
Occupancy Status Occupancy Status
Occupancy Status Date The date the occupancy status
reported was determined.
Original Loan Amount Original Loan Amount
Original Value Amount The value of the property as
determined at the origination of
the account.
F-2-2
The date the closing occurred to
Origination Date originate the loan.
The date the original Value
ORIGINATION VALUE DATE Amount was determined.
ORIGINATION VALUE SOURCE The type of valuation that was
used to determine the Original
Value amount.
Other Advance Expenses Total Advances minus all other/
detail and total
Ownership Code
Paid in Full Date Date loan liquidated from system
UPB removed
Paid Off Code
Part B Funds Received Date FHA/VA Only
Partial Prepayment Amount Collected
Post Petition Due Date
Prepayment Expiration Date Term
Prepayment Flag
Prepayment Premium Collected
Prepayment Waived
Product Type
Property Condition
PROPERTY PRESERVATION FEES
Property Type
Realized Gain or Loss
Reason for Default
Reason Suspended
Relief/Dismissal Hearing Date
REO Repaired Value
REO Value(As-is)
REO Actual Closing Date
REO Flag (Man Code)
REO List Date
REO List Price
REO Net Sales proceeds
REO Sales Price
REO Scheduled Close Date
REO Value Date
REO VALUE SOURCE
Repay First Due Date
Repay Last Due Date
Repay Next Due Date
Repay Plan Broken Date
Repay Plan Created Date
SBO LOAN NUMBER
Scheduled Balance
Scheduled Due Date
Servicing Fee
State
Street Address
T&I Advances
Title Approval Letter Received Date
Title Package to HUD Date
Title Package to VA Date
F-2-3
VA Claim Funds Received Date
VA Claim Submitted Date
VA FIRST FUNDS RECEIVED AMOUNT
VA FIRST FUNDS RECEIVED DATE
VA XXX Submitted Date
ZIP CODE
FNMA ACTION CODE
FNMA DELINQUENCY REASON CODE
F-2-4
