EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into as
of the 1st day of April, 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 JPMORGAN CHASE BANK, N.A., 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 either originated
or acquired by the Servicer pursuant to a Flow Mortgage Loan Sale and Servicing
Agreement between the Bank, as Purchaser, and the Servicer, as Seller and as
Servicer, dated August 1, 2004 for Adjustable Rate Mortgage Loans (the "MLSSA")
which is annexed hereto as Exhibit B.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated April
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 April 1, 2005 (the "Trust Agreement"), among the Trustee,
Aurora, as master servicer ("Aurora," and, together with any successor master
servicer appointed pursuant to the provisions of the Trust Agreement, the
"Master Servicer"), and SASCO.
WHEREAS, the Serviced Mortgage Loans are currently being serviced by the
Servicer pursuant to the 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 April 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 May 18, 2005 to the Trust Fund is to include principal due after April 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 2005-5 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 0000-0
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 2005-5
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Institutional Trust Services/Global Debt - SARM 2005-5
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
JPMORGAN CHASE BANK, N.A.
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 Xxx 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 Xxx" is hereby added to Section 1 to
immediately follow the definition of "GAAP," to read as follows:
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Xxxxxx Mae: 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 2005-5
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 five 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
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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 (h), by
replacing the period at the end of clause (i) with a semicolon
and by adding the following new clauses (j) and (k):
(j) to invest funds in the Custodial Account in Eligible
Investments in accordance with Subsection 11.04; and
(k) 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
2005-5 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 eighth 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 2005-5
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 11.27 (SEC Certificate) is hereby added to read as
follows:
Subsection 11.27 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,
obligations and liabilities of the Servicer.
A-13
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.
A-14
EXHIBIT B
Mortgage Loan Sale and Servicing Agreement
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 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
E-1-1
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-1-2
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 filed DATE(MM/DD/YYYY) Actual date that the claim was
date submitted to the PMI company.
Actual bankruptcy start DATE(MM/DD/YYYY) Actual date that the bankruptcy
date petition is filed with the
court.
Actual MI claim amount NUMBER(15,2) The amount of the claim that was
filed filed by the servicer with the
PMI company.
Actual discharge date DATE(MM/DD/YYYY) Actual date that the Discharge
Order is entered in the
bankruptcy docket.
Actual due date DATE(MM/DD/YYYY) Actual due date of the next
outstanding payment amount due
from the mortgagor.
Actual eviction complete DATE(MM/DD/YYYY) Actual date that the eviction
date proceedings are completed by
local counsel.
Actual eviction start DATE(MM/DD/YYYY) Actual date that the eviction
date proceedings are commenced by
local counsel.
Actual first legal date DATE(MM/DD/YYYY) Actual date that foreclosure
counsel filed the first legal
action as defined by state
statute.
Actual redemption end DATE(MM/DD/YYYY) Actual date that the foreclosure
date redemption period expires.
Bankruptcy chapter VARCHAR2(2) 7=Chapter 7 filed 11= Chapter 11 filed Chapter of bankruptcy filed.
12=Chapter 12 filed 13= Chapter 13 filed
Bankruptcy flag VARCHAR2(2) Y=Active Bankruptcy N=No Active Bankruptcy Servicer defined indicator that
identifies that the property is
an asset in an active bankruptcy
case.
Bankruptcy Case Number VARCHAR2(15) The court assigned case number
of the bankruptcy filed by a
party with interest in the
property.
E-2-1
MI claim amount paid NUMBER(15,2) The amount paid to the servicer
by the PMI company as a result
of submitting an MI claim.
MI claim funds received DATE(MM/DD/YYYY) Actual date that funds were
date received from the PMI company as
a result of transmitting an MI
claim.
Current loan amount NUMBER(10,2) Current unpaid principal balance
of the loan as of the date of
reporting to Aurora Master
Servicing.
Date FC sale scheduled DATE(MM/DD/YYYY) Date that the foreclosure sale
is scheduled to be held.
Date relief/dismissal DATE(MM/DD/YYYY) Actual date that the dismissal
granted or relief from stay order is
entered by the bankruptcy court.
Date REO offer accepted DATE(MM/DD/YYYY) Actual date of acceptance of an
REO offer.
Date REO offer received DATE(MM/DD/YYYY) Actual date of receipt of an REO
offer.
Delinquency value NUMBER(10,2) Value obtained typically from a
BPO prior to foreclosure
referral not related to loss
mitigation activity.
Delinquency value source VARCHAR2(15) BPO= Broker's Price Opinion Appraisal=Appraisal Name of vendor or management
company that provided the
delinquency valuation amount.
Delinquency value date DATE(MM/DD/YYYY) Date that the delinquency
valuation amount was completed
by vendor or property management
company.
Delinquency flag VARCHAR2(2) Y=90+ delinq. Not in FC, Bky or Loss mit Servicer defined indicator that
N=Less than 90 days delinquent identifies that the loan is
delinquent but is not involved
in loss mitigation, foreclosure,
bankruptcy or REO.
Foreclosure flag VARCHAR2(2) Y=Active foreclosure N=No active foreclosure Servicer defined indicator that
identifies that the loan is
involved in foreclosure
proceedings.
E-2-2
Corporate expense NUMBER(10,2) Total of all cumulative expenses
balance advanced by the servicer for
non-escrow expenses such as but
not limited to: FC fees and
costs, bankruptcy fees and
costs, property preservation and
property inspections.
Foreclosure attorney DATE(MM/DD/YYYY) Actual date that the loan was
referral date referred to local counsel to
begin foreclosure proceedings.
Foreclosure valuation NUMBER(15,2) Value obtained during the
amount foreclosure process. Usually as
a result of a BPO and typically
used to calculate the bid.
Foreclosure valuation DATE(MM/DD/YYYY) Date that foreclosure valuation
date amount was completed by vendor
or property management company.
Foreclosure valuation VARCHAR2(80) BPO=Broker's Price Opinion Appraisal=Appraisal Name of vendor or management
source company that provided the
foreclosure valuation amount.
FHA 27011A transmitted DATE(MM/DD/YYYY) Actual date that the FHA 27011A
date claim was submitted to HUD.
FHA 27011 B transmitted DATE(MM/DD/YYYY) Actual date that the FHA 27011B
date claim was submitted to HUD.
VA LGC/ FHA Case number VARCHAR2(15) Number that is assigned
individually to the loan by
either HUD or VA at the time of
origination. The number is
located on the Loan Guarantee
Certificate (LGC) or the
Mortgage Insurance Certificate
(MIC).
FHA Part A funds DATE(MM/DD/YYYY) Actual date that funds were
received date received from HUD as a result of
transmitting the 27011A claim.
Foreclosure actual sale DATE(MM/DD/YYYY) Actual date that the foreclosure
date sale was held.
Servicer loan number VARCHAR2(15) Individual number that uniquely
identifies loan as defined by
servicer.
Loan type VARCHAR2(2) 1=FHA Residential 2=VA Residential Type of loan being serviced
3=Conventional w/o PMI 4=Commercial generally defined by the
5=FHA Project 6=Conventional w/PMI existence of certain types of
7=HUD 235/265 8=Daily Simple Interest Loan insurance. (ie: FHA, VA,
9=Farm Loan U=Unknown conventional insured,
S=Sub prime conventional uninsured, SBA,
etc.)
E-2-3
Loss mit approval date DATE(MM/DD/YYYY) The date determined that the
servicer and mortgagor agree to
pursue a defined loss mitigation
alternative.
Loss mit flag VARCHAR2(2) Y=Active loss mitigation N=No active loss mitigation Servicer defined indicator that
identifies that the loan is
involved in completing a loss
mitigation alternative.
Loss mit removal date DATE(MM/DD/YYYY) The date that the mortgagor is
denied loss mitigation
alternatives or the date that
the loss mitigation alternative
is completed resulting in a
current or liquidated loan.
Loss mit type VARCHAR2(2) L= Loss Mitigation LT=Litigation pending The defined loss mitigation
NP=Pending non-performing sale CH=Charge off alternative identified on the
DI=Deed in lieu FB=Forbearance plan loss mit approval date.
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 DATE(MM/DD/YYYY) Name of vendor or management
company that provided the loss
mitigation valuation amount.
Loss mit value source VARCHAR2(15) BPO=Broker's Price Opinion Appraisal=Appraisal Date that the lost mitigation
valuation amount was completed
by vendor or property management
company.
MI certificate number VARCHAR2(15) A number that is assigned
individually to the loan by the
PMI company at the time of
origination. Similar to the VA
LGC/FHA Case Number in purpose.
LPMI Cost NUMBER(7,7) The current premium paid to the
PMI company for Lender Paid
Mortgage Insurance.
Occupancy status VARCHAR2(1) O=Owner occupied T=Tenant occupied The most recent status of the
U=Unknown V=Vacant property regarding who if anyone
is occupying the property.
Typically a result of a routine
property inspection.
First Vacancydate/ DATE(MM/DD/YYYY) The date that the most recent
Occupancy status date occupancy status was determined.
Typically the date of the most
recent property inspection.
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Original loan amount NUMBER(10,2) Amount of the contractual
obligations (ie: note and
mortgage/deed of trust).
Original value amount NUMBER(10,2) Appraised value of property as
of origination typically
determined through the appraisal
process.
Origination date DATE(MM/DD/YYYY) Date that the contractual
obligations (ie: note and
mortgage/deed of trust) of the
mortgagor was executed.
FHA Part B funds DATE(MM/DD/YYYY) Actual date that funds were
received date received fro HUD as a result of
transmitting the 27011B claim.
Post petition due date DATE(MM/DD/YYYY) The post petition due date of a
loan involved in a chapter 13
bankruptcy.
Property condition VARCHAR2(2) 1=Excellent 2=Good Physical condition of the
3=Average 4=Fair property as most recently
5=Poor 6=Very poor reported to the servicer by
vendor or property management
company.
Property type VARCHAR2(2) 1=Single family 2=Town house Type of property secured by
3=Condo 4=Multifamily 5=Other mortgage such as: single family,
6=Prefabricated B=Commercial C=Land only 2-4 unit, etc.
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 default VARCHAR2(3) 001=Death of principal mtgr 02=Illness of principal mtgr Cause of delinquency as
003=Illness of mtgr's family member identified by mortgagor.
004=Death of mtgr's family member 005=Marital difficulties
006=Curtailment of income 007=Excessive obligations
008=Abandonment of property 009=Distant employee transfer
011=Property problem 012=Inability to sell property
013=Inability to rent property 014=Military service
015=Other 016=Unemployment
017=Business failure 019=Casualty loss
022=Energy-Environment costs 023=Servicing problems
026=Payment adjustment 027=Payment dispute
029=Transfer ownership pending 030=Fraud
031=Unable to contact borrower INC=Incarceration
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REO repaired value NUMBER(10,2) The projected value of the
property that is 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
adjustment amount amount as updated by the
servicer for REO properties.
REO list price DATE(MM/DD/YYYY) The most recent date that the
adjustment date servicer advised the agent to
make an adjustment to the REO
listing price.
REO value (as is) NUMBER(10,2) The value of the property
without making any repairs as
determined by the
vendor/property management
company.
REO actual closing date DATE(MM/DD/YYYY) The actual date that the sale of
the REO property closed escrow.
REO flag VARCHAR2(7) Y=Active REO N=No active REO Servicer defined indicator that
identifies that the property is
now Real Estate Owned.
REO original list date DATE(MM/DD/YYYY) The initial/first date that the
property was listed with an
agent as an REO.
REO original list price NUMBER(15,2) The initial/first price that was
used to list the property with
an agent as an REO.
REO net sales proceeds NUMBER(10,2) The actual REO sales price less
closing costs paid. The net
sales proceeds are identified
within the HUD1 settlement
statement.
REO sales price NUMBER(10,2) Actual sales price agreed upon
by both the purchaser and
servicer as documented on the
HUD1 settlement statement.
REO scheduled close date DATE(MM/DD/YYYY) The date that the sale of the
REO property is scheduled to
close escrow.
REO value date DATE(MM/DD/YYYY) Date that the vendor or
management company completed the
valuation of the property
resulting in the REO value (as
is).
REO value source VARCHAR2(15) BPO= Broker's Price Opinion Appraisal=Appraisal Name of vendor or management
company that provided the REO
value (as is).
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Repay first due date DATE(MM/DD/YYYY) The due date of the first
scheduled payment due under a
forbearance or repayment plan
agreed to by both the mortgagor
and servicer.
Repay next due date DATE(MM/DD/YYYY) The due date of the next
outstanding payment due 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
broken/reinstated/closed which the servicer considers
date that the plan is no longer in
effect as a result of plan
completion or mortgagor's
failure to remit payments as
scheduled.
Repay plan created date DATE(MM/DD/YYYY) The date that both the mortgagor
and servicer agree to the terms
of a forbearance or repayment
plan.
SBO loan number NUMBER(9) Individual number that uniquely
identifies loan as defined by
Aurora Master Servicing.
Escrow balance/advance NUMBER(10,2) The positive or negative account
balance balance that is dedicated to
payment of hazard insurance,
property taxes, MI, etc. (escrow
items only)
Title approval letter DATE(MM/DD/YYYY) The actual date that the title
received date approval was received as set
forth in the HUD title approval
letter.
Title package HUD/VA DATE(MM/DD/YYYY) The actual date that the title
date package was submitted to either
HUD or VA.
VA claim funds received DATE(MM/DD/YYYY) The actual date that funds were
date received by the servicer from
the VA for the expense claim
submitted by the servicer.
VA claim submitted date DATE(MM/DD/YYYY) The actual date that the expense
claim was submitted by the
servicer to the VA.
VA first funds received NUMBER(15,2) The amount of funds received by
amount the servicer from VA as a result
of the specified bid.
VA first funds received DATE(MM/DD/YYYY) The date that the funds from the
date specified bid were received by
the servicer from the VA.
VA XXX submitted date DATE(MM/DD/YYYY) Actual date that the Notice of
Election to Convey was submitted
to the VA.
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Zip Code VARCHAR2(5) US postal zip code that
corresponds to property
location.
FNMA Delinquency status VARCHAR2(3) 09=Forbearance 17=Preforeclosure sale The code that is electronically
code 24=Drug seizure 26=Refinance 27=Assumption reported to FNMA by the servicer
28=Modification 29=Charge-off 30=Third-party sale that reflects the current
31=Probate 32=Military indulgence 43=Foreclosure defaulted status of a loan.
44=Deed-in-lieu 49=Assignment 61=Second lien considerations (ie: 65, 67, 43 or 44)
62=VA no-bid 63=VA Refund 64=VA Buydown
65=Ch. 7 bankruptcy 66=Ch. 11 bankruptcy 67=Ch. 13 bankruptcy
FNMA delinquency reason VARCHAR2(3) 001=Death of principal mtgr 002=Illness of principal mtgr The code that is electronically
code 003=Illness of mtgr's family member 004=Death of mtgr's family member reported to FNMA by the servicer
005=Marital difficulties 006=Curtailment of income that describes the circumstance
007=Excessive obligations 008=Abandonment of property that appears to be the primary
009=Distant employee transfer 011=Property problem contributing factor to the
012=Inability to sell property 013=Inability to rent property delinquency.
014=Military service 015=Other
016=Unemployment 017=Business failure
019=Casualty loss 022=Energy-Environment costs
023=Servicing problems 026=Payment adjustment
027=Payment dispute 029=Transfer ownership pending
030=Fraud 031=Unable to contact borrower
INC=Incarceration
Suspense balance NUMBER(10,2) Money submitted to the servicer,
credited to the mortgagor's
account but not allocated to
principal, interest, escrow,
etc.
Restricted escrow NUMBER(10,2) Money held in escrow by the
balance mortgage company 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 2005-5
Reference is made to the Reconstituted Servicing Agreement dated as of April 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 JPMorgan Chase Bank, N.A.,
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: ____________________________
F-1
